United States District Court, E.D. California
ORDER
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
Plaintiff,
a federal prisoner proceeding pro se, initiated this civil
action on January 26, 2015, challenging his custody
classification with the Bureau of Prisons
(“BOP”). Plaintiff’s complaint was premised
on an allegedly erroneous 3-point increase in his score for a
history of violence. By way of relief, plaintiff sought an
order directing the BOP to lower his total custody score from
21 to 18, an action that would presumably open more desirable
housing assignments within the federal prison system.
On
January 8, 2016, the undersigned[1] dismissed this action
without leave to amend for lack of subject matter
jurisdiction. (ECF No. 10.) In the order of dismissal, the
court held that while 5 U.S.C. § 702 generally allows
for judicial review of a federal agency decision, the
decision at issue in this case-a prisoner’s security
classification and facility designation-is specifically
excluded from review pursuant to 18 U.S.C. § 3625. In
determining that plaintiff’s complaint filed under 5
U.S.C. § 702 cannot state a claim under another statute,
the court held as follows:
Although this court has discretion, in some circumstances, to
construe a pro se complaint filed under one statute as an
action proceeding under another, or to allow a pro se
plaintiff an opportunity to amend his complaint to aver the
necessary legal elements of a potentially viable claim, in
this case the court does not have that option: the futility
of any viable cause of action, based on these allegations, is
complete under the jurisdiction-stripping effect of 18 U.S.C.
§ 3625. No habeas action can lie here because
“[t]o find that prisoners can bring habeas petitions
... to challenge the BOP’s discretionary determinations
made pursuant to 18 U.S.C. § 3621 would be inconsistent
with the language of 18 U.S.C. § 3625.”
Reeb, 636 F.3d at 1227. Nor can plaintiff assert any
civil rights claim pursuant to Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971), because under the BOP’s virtually
unlimited authority to control prisoner classifications and
housing assignments, an inmate “has no legitimate
statutory or constitutional entitlement sufficient to invoke
due process” and thereby contest “prisoner
classification ... in the federal system.” Moody v.
Daggett, 429 U.S. 78, 88 n.9 (1976). See also
Miller, 703 F.Supp.2d at 16 (stating “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”); Medina-Alvarez v. United
States, No. CV 13-0783 ODW (JC), 2013 WL 799620 at *2
(C.D. Cal. March 4, 2013) (stating that “[t]he
exemption of the BOP’s individualized housing
determinations from judicial review is consistent with the
recognition that inmates do not have a due process liberty
interest in their placement and classification while
incarcerated”).
ECF No. 10 at 4-5. Judgment was entered accordingly. (ECF No.
11.)
Now
pending is plaintiff’s motion to alter or amend the
judgment, wherein he seeks leave to amend his complaint to
state a claim under the Privacy Act, 5 U.S.C. §
552a(e)(5) and (g)(1)(C), and to bring a
Bivens[2] action pursuant to 42 U.S.C. § 1983.
Federal
Rule of Civil Procedure 60(b) sets forth the standard by
which this court may reconsider its order of final judgment:
Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it ...