Wisdom v. Federal Bureau of Prisons

          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 ...