Opinion
CIVIL ACTION NO. 16-3583
07-14-2016
KEVINO W. GRAHAM v. UNITED STATES SENTENCING COMMISSION
MEMORANDUM STENGEL, J.
Plaintiff Kevino W. Graham, a prisoner incarcerated at the Federal Detention Center in Philadelphia, brings this civil action against the United States Sentencing Commission for alleged violations of his constitutional rights. He seeks leave to proceed in forma pauperis. The Court will grant Graham leave to proceed in forma pauperis and dismiss his complaint.
1. FACTS
According to the public docket for the criminal proceeding underlying Graham's claims, Graham was convicted of sex trafficking by force, in violation of 18 U.S.C. § 1591, and aiding and abetting sex trafficking, in violation of 18 U.S.C. § 1594. See United States v. Graham, Crim. A. No. 14-623-1 (E.D. Pa.). He has not yet been sentenced. In his complaint, Graham essentially challenges the Sentencing Guidelines that will apply to his case, U.S.S.G. § 2G1.1. He alleges that § 2G1.1 is unconstitutional because the Sentencing Commission relied on the Adam Walsh Child Protection and Safety Act, which concerned children, in crafting the Guidelines pertaining to sex trafficking of adults. In that regard, he alleges that the Sentencing Commission violated his rights by "creation of the nonexistent offense of sex trafficking of an adult by force, fraud, or coercion under 1591(b)(1)." (Compl. ¶ 10.) Graham seeks a declaration that his rights have been violated and two million dollars in damages.
II. STANDARD OF REVIEW
The Court will grant Graham's motion to proceed in forma pauperis because it appears that he is incapable of paying the fees to commence this lawsuit. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(i) requires the Court to dismiss the complaint if it is frivolous, among other things. A complaint is frivolous if it "lacks an arguable basis either in law or in fact," Neitzke v. Williams, 490 U.S. 319, 325 (1989), and is legally baseless if it is "based on an indisputably meritless legal theory." Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995). As Graham is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
However, as Graham is a prisoner, he will be obligated to pay the filing fee in installments in accordance with the Prisoner Litigation Reform Act. See 28 U.S.C. § 1915(b).
III. DISCUSSION
There is no legal basis for Graham's constitutional claims against the Sentencing Commission. Although Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) creates a damages remedy against individual federal agents for certain constitutional violations, it does not support a cause of action against the federal government itself or the Sentencing Commission. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001) (explaining that Bivens "is concerned solely with deterring the unconstitutional acts of individual officers"); Rivera v. Saris, 130 F. Supp. 3d 397, 401 (D.D.C. 2015) ("[A] Bivens claim cannot be brought against the Commission itself."). Furthermore, "[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The Court cannot find any basis for concluding that sovereign immunity has been waived here. Indeed, courts addressing the issue have held that, in creating the Sentencing Commission, Congress did not waive sovereign immunity for claims challenging the constitutionality of provisions of the Sentencing Guidelines. See Morris v. U.S. Sentencing Comm'n, 62 F. Supp. 3d 67, 73-74 & 76 (D.D.C. 2014) (holding that the federal government did not waive immunity for constitutional claims for damages and declaratory judgment challenging guidelines promulgated by the Sentencing Commission); see also Rivera, 130 F. Supp. 3d at 401-02 (no basis for claims against Sentencing Commission challenging the guidelines under Bivens or Declaratory Judgment Act).
The Sentencing Commission is "an independent commission in the judicial branch of the United States," rather than an agency. 28 U.S.C. § 991. However, it still may not be sued absent a waiver of sovereign immunity.
IV. CONCLUSION
For the foregoing reasons, the Court will dismiss the complaint as legally baseless. Graham will not be given leave to amend because amendment would be futile. In the event Graham seeks to challenge the constitutionality of the Sentencing Guidelines that govern his criminal conduct, he should do so in his criminal case. An appropriate order follows, which shall be docketed separately.
Before the Court could address Graham's initial complaint, Graham filed a motion for leave to file an amended complaint to sue the Sentencing Commission in its individual and official capacities. His amendment does not cure the deficiencies in his complaint because the Sentencing Commission may not be sued in any capacity. To the extent he intended to name individual commissioners of the Sentencing Commission as defendants in this action, those individuals are entitled to immunity from plaintiff's claims. Rivera, 130 F. Supp. 3d at 402. --------