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Scott Lewis Rendelman v. Milton Neumann and Kelly

January 4, 2012

SCOTT LEWIS RENDELMAN, PLAINTIFF,
v.
MILTON NEUMANN AND KELLY, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge:

MEMORANDUM AND ORDER

Plaintiff Scott Lewis Rendelman, an inmate in USP-Marion, brings this action for deprivations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff is serving a 180-month sentence on a conviction in the District of Maryland for mailing threatening communications (Case No. 07-cr-0331-RWT-1). He was also sentenced by this Court to a consecutive 96 months after being convicted of criminal contempt, retaliating against federal officials, and threats against the President (Case No. 09-cr-40051-GPM). This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A.

An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A and to dismiss this action.

The Complaint

Plaintiff complains that Defendants have improperly assigned him an incorrect "current offense severity" score of five points ("high severity") when, based on the information in his pre-sentence investigation report, he asserts his offense severity score should be only three points ("moderate severity") (Doc. 1, pp.7, 9). Defendants Neumann and Kelly are Bureau of Prisons (BOP) officials who sat on the team that conducted Plaintiff's Program Review and assigned his offense severity score.

Plaintiff argues that the higher score should apply only if his criminal conduct of mailing threatening letters was accompanied "with conduct evidencing an intent to carry out the threat" (Doc. 1, p. 5, quoting from BOP Program Statement 5100.08). He claims that during the presentence investigation in his criminal case, the investigator and the court concluded that Plaintiff did not engage in any additional threatening conduct beyond the letters themselves and, consequently, did not increase his offense level under the United States Sentencing Guidelines. Because Plaintiff was in prison at the time he wrote the letters in question, he notes that it would have been impossible for him to carry out the threats (Doc. 1, p. 8). In Plaintiff's view, the sentencing court's determination as to the seriousness of his offense should be binding on the BOP officials who decide his security classification within the BOP system. He further asserts that under 18 U.S.C. § 4081, he has a statutory right to proper classification and that the improper classification has deprived him of a liberty interest without due process (Doc. 1, pp. 5-6).

He requests an order requiring Defendants to reduce his offense severity score to ...


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