UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROBERT CLINKENBEARD, : : Plaintiff, : v. : Civil Action No. 24-cv-0252 (APM) : UNITED STATES OF AMERICA, et al., : : Defendants. :

MEMORANDUM OPINION

This matter is before the court on Defendants’ Motion to Dismiss (ECF No. 18) and

supporting memorandum (ECF No. 18-1, “Defs.’ Mem.”), and pro se Plaintiff Robert Joseph Dale

Clinkenbeard’s Motion to Expedite Judicial Review (ECF No. 23, “Mot. to Expedite”). The court

grants the motion to dismiss, and denies the motion for expedited review as moot.

I. BACKGROUND

Plaintiff is currently in the custody of the Federal Bureau of Prisons (“BOP”) and is

“serving sentences for violations of

(g)(1), 922(g)(9), and 924(a)(2), Possession

of a Firearm by a Felon and a Person Convicted of Domestic Violence,

(a)(1),

841(b)(1)(C) and

(c)(1)(A), Use of Firearm During and in Relation to a Drug

Trafficking Crime.” Compl., Ex. (ECF No. 1-1 at 17, Regional Administrative Remedy Appeal,

Part B-Response) (page numbers designated by CM/ECF); see Judgment in a Criminal Case,

United States v. Clinkenbeard, No. 5:18-cr-4064 (N.D. Iowa Mar. 26, 2019) (ECF No. 36).

Plaintiff describes his offenses as the “peaceful,” Compl. at 4, and “simple sale of an

unloaded rifle followed by the subsequent but uncontemporaneous [sic] gifting of less than $30.00

worth of narcotics,” id.; see

. According to Plaintiff, neither offense is violent, see

, asserting that the mere “possession by a felon during and in relation to a drug trafficking crime is not by itself a ‘crime of violence,’”

; see

; see also Mot. for Leave to Submit Brief

in Support of Compl. (ECF No. 11) at 2. Plaintiff denies ever having brandished, fired, or

attempted to fire the rifle, see Compl. at 4, or having used or threatened to use physical force

against another person, see

. Nevertheless, pursuant to its Program Statement 5162.05,

Classification of Offenses (“P.S. 5162.05”), BOP deems Plaintiff’s offenses to be violent by

simply “point[ing] to the statute of conviction itself,” Compl. at 6, without, according to Plaintiff,

“provid[ing] a sufficient explanation or adequate rationalization for how the determination of

‘violent’ was reached,”

; see

. Instead, he asserts, BOP makes its determination

based solely on the statute Plaintiff violated without first consulting his presentence investigation

report to determine whether his individual actions were indeed violent. See

at 4–5.

Plaintiff alleges that P.S. 5162.05, and its inclusion of violations of

(g)

and 924(c) in its list of violent offenses, “is overbroad, as applied, to [his] specific individual

circumstances,”

, because his “offense does not meet the definition of [“crime of violence”

under] [18 U.S.C. §] 924(c)(3),” id. at 5.1 The “violent” classification carries over to Plaintiff’s

Recidivism Risk Assessment for purposes of the First Step Act, see

, by

which BOP assesses an inmate’s risk of recidivism using the Prisoner Assessment Tool Targeting

Estimated Risks and Needs (“PATTERN”), see Compl. at 7. Plaintiff’s “Recidivism Risk

Assessment currently reads: ‘TRUE’ for the ‘Violent Offense’ category.”

For this reason, he

alleges, the recidivism score is “a gross over-representation of [his] actual recidivism risk.”

; see

.

1 The term “crime of violence” means “an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

(c)(3).

2 As a result, Plaintiff allegedly is denied benefits for which he might have been eligible if

he were classified as a “non-violent” offender. See

; see also Mot. for Leave to Supplement

Brief (ECF No. 12) at 2. For example, see Compl. at 5, Plaintiff states that an inmate convicted

of a non-violent offense could qualify under

(e)(2)(B) for a one-year sentence

reduction upon completion of a residential drug abuse treatment program, or under

(c)(2) for home confinement, or under

for early release. In addition,

Plaintiff alleges, see Compl. at 5, he is “now considered ‘MEDIUM’ for ‘Violent Risk’” for

security classification purposes, rendering him ineligible for benefits for which an inmate

“considered a ‘LOW’ level for ‘Violent Risk’” would be eligible under

(d).2

Plaintiff brings this action under the Administrative Procedure Act (“APA”), see

, asserting that BOP’s “determination of ‘violent’ [is] arbitrary and capricious,” Compl.

at 4; see

. He also brings claims, see Compl. at 1, 6, 8, under the Fifth and Fourteenth

Amendments to the Constitution, arguing that BOP’s determination violates the Due Process

Clause, U.S. Const. amend. V, § 1, and the Equal Protection Clause, U.S. Const. amend. XIV, §

1. Plaintiff seeks an order that Defendants “reverse their former position in the determination of

‘violent’,” id. at 8, and make a change to his Recidivism Risk Assessment, id., among other relief,

see id. at 8–9. Because his “anticipated [residential reentry center] placement date [is] November

26, 2024,” Mot. to Expedite at 1, Plaintiff deems “[i]t . . . essential that the requested changes to

the determination of ‘violent’ to ‘non-violent’ be made prior to [his] release . . . in order for the

relief to be meaningful,” id. He explains that BOP’s Recidivism Risk Assessment score will affect

2 Generally, pursuant to the First Step Act, BOP “shall provide incentives and rewards for prisoners to participate in and complete evidence-based recidivism reduction programs,”

(d), such as transfer to an institution closer to the inmate’s release residence, see

§ 3632(d)(2), and time credits, see id. § 3632(d)(4). Prisoners convicted under

(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime, are not eligible to receive time credits.

§ 3632(d)(4)(D).

3 “the intensity of . . . probation,” id., and, perhaps, the duration of probation, id. at 2, after release

from custody.

II. LEGAL STANDARD

Defendants move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6)

on the ground that the complaint fails to state a claim upon which relief can be granted. Such a

motion “tests the legal sufficiency of a claim.” Sickle v. Torres Advanced Enter. Sols.,

LLC,

(D.C. Cir. 2018); FED. R. CIV. P. 12(b)(6).

To survive a Rule 12(b)(6) motion, a complaint must contain “sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (quoting Bell Atlantic Corp. v. Twombly,

(2007)). A claim is

“plausible” if a plaintiff pleads facts which “allow[ ] the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

.

The court accepts a plaintiff’s factual allegations as true and “construe[s] the complaint in

favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from

the facts alleged.” Hettinga v. United States,

(D.C. Cir. 2012) (per curiam)

(internal quotation marks omitted). But the court need not accept as true “inferences . . .

unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994). If the facts as alleged fail to establish that the plaintiff has stated a claim

upon which relief can be granted, the court must grant the defendant’s Rule 12(b)(6) motion and

dismiss the complaint. See Am. Chemistry Council, Inc. v. U.S. Dep’t of Health & Human Servs.,

(D.D.C. 2013).

Plaintiff here is proceeding pro se. The court not only must construe his complaint

liberally, see Erickson v. Pardus,

(2007), it also must “consider his filings as a

4 whole before dismissing a complaint,” Schnitzler v. United States,

(D.C. Cir. 2014)

(citing Richardson v. United States,

(D.C. Cir. 1999)).

III. DISCUSSION

BOP designates Plaintiff a MEDIUM security prisoner, see Compl. at 5, and in the

“medium” category for risk of recidivism, see id; see also

Ex. (ECF No. 1 at 10, FSA

Recidivism Risk Assessment (PATTERN 01.03.00)). Plaintiff’s challenges his security

classification and his PATTERN score are doomed from the start.

First, the APA does not apply to claims of this sort.

(“The provisions of

sections 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the making

of any determination, decision, or order under this subchapter.”); see Kowalewski v. Warden,

FCI Fort Dix, No. 23-cv-20320,

, at *9 (D.N.J. Aug. 27, 2024) (“Petitioner may

not challenge BOP’s determination of his security classification and his PATTERN Score under

the APA.”); Landis v. Moyer,

, 656 (M.D. Pa. 2022) (“Our court of appeals

has held that Section 3625 effectively forecloses judicial review under the APA of prisoner claims

challenging security classifications, housing designations, and similar decisions made by the

BOP.”), aff’d, No. 22-2421,

(3d Cir. Mar. 5, 2024). “Both security

classifications and PATTERN scores are determined by BOP under §§ 3621 and 3624,”

Kowalewski,

, at *9 (citations omitted), and consequently, the APA precludes

judicial review of Plaintiff’s scores, see Smith v. Ray, No. 5:24-cv-0131,

, at *3

(N.D.W. Va. Sept. 26, 2024) (finding individual determinations under § 3624 are not reviewable);

Brown v. Holzapfel, No. 5:24-cv-0062,

, at *4 (S.D.W. Va. June 6, 2024)

(concluding that

prohibits judicial review of a prisoner’s PATTERN score or

recidivism risk level, which are determined under

(h) and 3624(g)(1)), report

5 and recommendation adopted, No. 5:24-cv-0062,

(S.D.W. Va. July 1, 2024);

Calloway v. Neely, No. 7:23-cv-0084,

, at *7 (N.D. Ala. Mar. 12, 2024) (noting

per amendment to First Step Act,

(b), “a designation of a place of imprisonment

under this subsection is not reviewable by any court”), report and recommendation adopted,

No. 7:23-cv-84,

(N.D. Ala. Apr. 8, 2024).

Second, Plaintiff fails to state a due process claim because he has not “identif[ied] the denial

of a liberty interest.” James v. Reno,

(D.D.C. 1999) (citing Sandin v. Conner,

(1995)), aff’d, No. 99-5081,

(D.C. Cir. July 2, 1999) (per curiam).

An inmate has no protected interest in his place of incarceration. See Olim v. Wakinekona,

(1983) (holding prisoner has no constitutionally protected interest in the place

of his confinement); Woods v. Hawk-Sawyer, No. 1:20-cv-1152,

, at *3 (D.D.C.

Oct. 20, 2020) (“Prisoners have no liberty interest in their place of incarceration.”); see also

DeTomaso v. McGinnis,

(7th Cir. 1992) (“Community correctional centers are

low security institutions but still prisons, and inmates have no more claim to be sent there than

they have to avoid commitment to maximum-security penitentiaries.”). Similarly, an inmate has

no protected interest in his security classification. See Butler v. S. Porter,

, 296 (5th

Cir. 2021) (quoting Moody v. Baker,

, 257–58 (5th Cir. 1988) (per curiam)) (affirming

district court’s sua sponte dismissal of due process claim arising from placement in special housing

unit and remarking, “[a]s a general rule, ‘[a]n inmate has neither a protectible property nor liberty

interest in his custody classification’”); Martinez v. Johnson,

(5th Cir.

2004) (per curiam) (finding that “prisoner does not have a constitutionally protected liberty interest

in his classification or in remaining free from administrative segregation”); Gigger v. Corr. Corp.

of Am.,

(D.D.C. 2010) (“A prisoner has no constitutionally protected

6 interest in his place of confinement or security classification.”); Miller v. Fed. Bureau of Prisons,

, 16–17 (D.D.C. 2010) (“The due process claim necessarily fails because it is

settled law that a prisoner does not have a liberty interest in his place of confinement or custody

classification that can be redressed by the due process clause of the constitution.”).

Third, Plaintiff has not stated an Equal Protection claim. For starters, the Fourteenth

Amendment does not apply to the federal government. See Bolling v. Sharpe,

(1954) (noting that “the Fourteenth Amendment . . . applies only to the states”). Even if the court

were to construe the claim under the Fifth Amendment, the claim still fails because the complaint’s

conclusory allegations fall short of stating a viable Equal Protection claim. “To prevail on his

equal protection claim, [Plaintiff] would have to demonstrate that he was treated differently than

similarly situated individuals and that [BOP’s] explanation does not satisfy the relevant level of

scrutiny.” Settles v. U.S. Parole Comm’n,

(D.C. Cir. 2005)) (citation

omitted).

Plaintiff appears to make a distinction between the treatment of persons who commit “non-

violent offense[s] while observing their Constitutionally protected 2nd Amendment right and those

who were not observing their Constitutionally protected second amendment right and were

convicted of a non-violent offense.” Compl. at 8. He alleges “there is no rationale [sic] basis for

the difference in treatment between [himself] and other similarly situated inmates,”

and denies

having heard any rationale “suggest[ing] that the unequal treatment was not the result of intentional

or purposeful discrimination,”

Plaintiff does not allege that his offenses of conviction actually

were exercises of Second Amendment rights, and it is not at all clear that the exercise of Second

Amendment rights is relevant.

7 Elsewhere, Plaintiff distinguishes the “violent” use of a firearm “to intimidate, threaten,

instill fear, coerce, strike with, fire or attempt to fire” from his purported “non-violent” sale of an

unloaded rifle and gift of narcotics. Pl.’s Opp’n (ECF No. 20) at 4. According to Plaintiff, his

“circumstances are overtly different” from those for whom a “violent” classification is warranted.

The relevant qualifier appears to be the offense of conviction, and Plaintiff does not allege that

BOP treated other prisoners serving sentences under

(g) and 924(c) more

favorably than it treated him.

IV. CONCLUSION

For the reasons discussed, the court concludes that Plaintiff has failed to state a claim upon

which relief can be granted. Accordingly, Defendants’ motion to dismiss is granted, and Plaintiff’s

motion for expedited review is denied as moot.

A final, appealable order accompanies this Memorandum Opinion.

DATE: November 1, 2024 /s/ AMIT P. MEHTA United States District Judge

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