FILED AUG. 23, 2021 UNITED STATES DISTRICT COURT Clerk, U.S. District & Bankruptcy FOR THE DISTRICT OF COLUMBIA Court for the District of Columbia

CLYDE PONTEFRACT, ) ) Plaintiff, ) ) v. ) Civil Action No. 21-1591 (UNA) ) UNITED STATES OF AMERICA, ) ) Defendant. )

MEMORANDUM OPINION

This matter is before the court on its initial review of plaintiff’s pro se complaint and

application for leave to proceed in forma pauperis.

Plaintiff filed a civil action in the United States District Court for the Northern District of

Ohio under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

(1971), alleging that the Warden of the Elkton Federal Correctional Institution in Lisbon, Ohio

and the Food Administrator of that facility violated rights protected under the Eighth

Amendment to the United States Constitution though their deliberate indifference to his basic

nutritional needs. See Compl. ¶¶ 24-26; Pontefract v. United States, No. 4:19-CV-0528,

(N.D. Ohio Dec. 23, 2019). The court ruled that plaintiff failed to

state a Bivens claim in part because he failed to show personal involvement of these defendants

in the alleged unconstitutional conduct. See

at *4-*5. Even if he had, the court found that

plaintiff’s “claim would nevertheless be subject to dismissal” in light of the Supreme Court’s

decision in Ziglar v. Abbasi,

(2017). Id. at *6. Because the Supreme Court “has

not extended a Bivens remedy under the Eighth Amendment in the context that Plaintiff

assert[ed],” the court “decline[d] to do so.” Id. at *7. On appeal, the Sixth Circuit found that

1 “the district court properly dismissed [plaintiff’s] inadequate-nutrition claim because only a

narrow range of claims fall within the scope of a Bivens claim,” and plaintiff’s claim did not.

Pontefract v. United States, No. 20-3064,

, at *4 (6th Cir. Nov. 6,

2020). The Supreme Court denied plaintiff’s petition for writ of certiorari. Pontefract v. United

States,

(2021).

Plaintiff contends that he sustained “an irreparable injury in regards to the denying of his

United States Constitutional Rights as a federal prisoner by the courts through Ziglar that cannot

be corrected by any other means.” Compl. ¶ 32; see id. ¶¶ 9-10. For example, he alleges that he

cannot pursue his Eighth Amendment claim under the Civil Rights for Institutionalized Persons

Act, see

et seq., as a State prisoner might, see Compl. ¶¶ 11-12, 33, and the

Prison Litigation Reform Act’s exhaustion requirement, see 42 U.S.C. § 1997e, mandates

completion of the Federal Bureau of Prisons’ grievance procedures even though those procedures

cannot address a constitutional claim, see Compl. ¶¶ 13-14, 34. The principal form of relief

plaintiff demands is a declaratory judgment that Ziglar is unconstitutional as applied to a federal

prisoner in BOP custody. See id. ¶ 36. The Court declines to do so.

This Court, as is every other federal district court and circuit court of appeals, is bound by

the decisions of the Supreme Court. Because the complaint fails to state a claim upon which

relief can be granted, the Court will dismiss the complaint and this civil action. Plaintiff’s

application to proceed in forma pauperis will be granted. An Order is issued separately.

/s/ EMMET G. SULLIVAN United States District Judge DATE: August 23, 2021

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