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Thelen v. Cross

United States District Court, Southern District of Illinois

March 5, 2015

PATRICK THELEN, # 16842-039, Plaintiff,



Plaintiff is an inmate in the FCI-Greenville. He brings this action for alleged violations 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). He also raises certain statutory claims. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A.


Previously, Plaintiff filed a substantially identical action under Thelen v. Cross, et al., Case No. 14-cv-760-MJR (S.D. Ill., filed July 2, 2014). He voluntarily dismissed that case after learning that he had not yet exhausted his administrative remedies as to some of his claims. He later attempted to revive that action by filing an amended complaint, and paid the $350.00 filing fee for that case in full. The undersigned Judge determined that Plaintiff would be required to bring the now-exhausted claims in a new complaint, and ordered the amended complaint to be filed in a new action, where no new fee would be charged (Doc. 2). The instant case was then opened, and it was randomly assigned to the undersigned Judge's docket.

The Complaint

Plaintiff raises two claims herein. First, he asserts that Defendants Cross (Greenville Warden), Samuels (Director of the Federal Bureau of Prisons – "BOP"), and Holder (Attorney General of the United States) violated his constitutional rights because they failed to take action to seek Plaintiff's release from what he characterizes as his current "unconstitutional and unlawful imprisonment" (Doc. 1, p. 1). Secondly, Plaintiff claims that Defendant Cross violated his due process right and statutory right (pursuant to 5 U.S.C. § 551 et seq .) to participate in the federal rulemaking process, because Defendant Cross failed to make the Federal Register available in the prison for Plaintiff to review (Doc. 1, pp. 1. 6-7). He sues each Defendant in his individual capacity only, and seeks compensatory and punitive damages.

Plaintiff was convicted in 1997 of two drug offenses, for violating 21 U.S.C. § 841(a)(1).[1] He received concurrent sentences as a career offender of 37 years for possession of methamphetamine with intent to distribute, and 30 years for possession of cocaine with intent to distribute, pursuant to 21 U.S.C. § 841(b)(1)(B) and (C). In the complaint, he points to three court decisions which, he argues, undermine his sentences and should entitle him to a sentence reduction (Doc. 1, p. 4). United States v. Flowal, 234 F.3d 932, 938 (6th Cir. 2000); United States v. Strayhorn, 250 F.3d 462, 468 (6th Cir. 2001); and Burrage v. United States, ___U.S. ___, 134 S.Ct. 881, 887 (Jan. 27, 2014). Under Flowal, he argues that the provisions of 21 U.S.C. § 841(b)(1)(A), (B), and (C) are three different crimes, and the elements of each must be proven to the jury beyond a reasonable doubt. Based on these decisions, he claims that he is now in custody for crimes that he was not charged with or convicted of.

On approximately January 30, 2014, Plaintiff requested Defendant Cross to seek a sentence reduction for him pursuant to 18 U.S.C.A § 3582(c)(2)(A)(i). Defendant Cross refused to do so. In March 2014, Plaintiff also requested Defendant Samuels to file a motion on his behalf under 18 U.S.C.A § 3582(c)(2)(A)(i), to no avail.

In May 2014, Plaintiff asked Defendant Cross to investigate his sentence computation and custody, based on his claims that he had not been charged or convicted of the crimes for which he was imprisoned. This request was also refused. Defendant Cross also opposed Plaintiff's petition seeking habeas relief in Thelen v. Cross, Case No. 13-cv-1172-DRH (S.D. Ill., filed Nov. 13, 2013).[2]

In June 2014, Plaintiff made similar requests to Defendants Holder and Samuels asking each of them to investigate the lawfulness of his imprisonment. Neither has responded or conducted any investigation into his claims.

Based on the refusal of Defendants to investigate his claims or seek a sentence reduction, and Defendant Cross' opposition to his petition for habeas relief, Plaintiff asserts they have subjected him to cruel and unusual punishment in violation of the Eighth Amendment. Defendants' conduct has also violated his Fifth Amendment right to due process, and his Sixth Amendment right to be informed of the "nature and accusation of the charges" against him (Doc. 1, p. 12).

Plaintiff's claims regarding access to the Federal Register are against Defendant Cross only. According to Plaintiff, the Federal Register was made available to Greenville inmates prior to 2010, and it continues to be available in most federal prisons. However, Defendant Cross did not make it available to Plaintiff at the time comments were solicited on the 2014 proposed rule changes to the United States Sentencing Guidelines ("USSG") Section 2D1.1 (Amendment 782), regarding lowering the drug quantity tables. Because the Federal Register was not available to him, Defendant Cross denied Plaintiff his statutory right to participate in the rulemaking process by submitting comments, under 5 U.S.C. § 551 et seq . (Doc. 1, p. 6). He also claims that Defendant Cross denied him the ability to comment on numerous other proposed agency regulations, rules, and policies, by refusing to allow access to the Federal Register.[3] Plaintiff asserts that Defendant Cross has thus violated his Fifth Amendment right to procedural due process, as well as his statutory rights under 5 U.S.C. § 551 et seq .

Plaintiff's Prior Challenges to his Convictions

A brief review of Plaintiff's appeals and collateral attacks is necessary to place Plaintiff's first claim in context. This history was summarized in the Court's initial order in the habeas case he references above, Thelen v. Cross, Case No. 13-cv-1172-DRH (Doc. 4 in that case). The Sixth Circuit affirmed Plaintiff's conviction and sentences, which included a career- offender sentencing enhancement under U.S.S.G. § 4B1.1. United States v. Thelen, No. 97-2303, 1999 WL ...

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