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LEE v. CARLSON

March 28, 1983

Reginald L. LEE, Plaintiff,
v.
Norman A. CARLSON, et al., Defendants



The opinion of the court was delivered by: RAMBO

 RAMBO, District Judge.

 This court has before it cross-motions for summary judgment and a motion by the plaintiff for the appointment of counsel.

 Reginald Lee was sentenced to twenty-two (22) years for bank robbery and larceny, aiding and abetting and assault during a robbery. He was committed to the Federal Correctional Institution, Memphis, Tennessee (hereinafter FCI-Memphis). He began serving his sentence at FCI-Memphis on March 26, 1980. On June 25, 1980 he was transferred to the United States Penitentiary, Lewisburg, Pennsylvania (hereinafter USP-Lewisburg).

 Lee was designated a Category 12 Central Monitoring Case (hereinafter CMC) so that his location would be monitored to keep him separated from certain other prisoners in federal custody. The separation was for their mutual protection. The other prisoners were either involved in the same crime or were participants in the witness protection program.

 Lee was also tentatively classified as a Category 9 CMC while he was at FCI-Memphis. His Category 9 status was the result of his alleged relationship to extremist groups. Soon after Lee's arrival at USP-Lewisburg the Category 9 classification was discontinued.

 On June 30, 1981, Lee was placed in administrative segregation at USP-Lewisburg. The segregation resulted from his allegation that he had received a threatening note. While in administrative segregation, the prisoner received numerous incident reports and lost good time credit and was placed in disciplinary segregation.

 On March 4, 1982, Lee was injured while in disciplinary segregation. The incident resulted from an attack or an altercation. Lee's cheek was lacerated and required stitches to close it. Lee also received a bloody nose in the incident.

 Lee has filed a complaint with this court. The complaint does not contain an allegation of subject matter jurisdiction. The complaint alleges violations of his fifth amendment right to due process, eighth amendment protections against cruel and unusual punishment, his fourteenth amendment guarantee of equal protection and violations of the policies of the Bureau of Prisons. This court's jurisdiction would be based on 28 U.S.C. § 1331. The relief of damages would be an implied private right of action. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).

 Lee, who is proceeding pro se and in forma pauperis, has requested the appointment of an attorney to represent him. Pursuant to the in forma pauperis statute, 28 U.S.C. § 1915(b), a court may, in its discretion, request an attorney to represent any person unable to afford counsel. See id. This action should be taken only in "exceptional circumstances." Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975).

 At this stage of the plaintiff's case, there does not appear to be exceptional circumstances justifying the appointment of an attorney to represent the plaintiff. The motion will be denied.

 Initially it can be determined that claims based on the fourteenth amendment's equal protection clause cannot be maintained. The defendants in this case are all agents of the federal government. A cause of action under the fourteenth amendment requires action by one of the states, not the federal government. See Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). See also Wilson v. District of Columbia, 338 A.2d 437 (D.C.App. 1975). Summary judgment for the defendants will be granted on the claims arising under the fourteenth amendment.

 The plaintiff's first claim is under the due process clause of the fifth amendment and relates to his transfer from FCI-Memphis to USP-Lewisburg. His allegation appears to be that the reclassification was made because of his alleged association with terrorist groups. Lee asserts that such a reason for the transfer was somehow improper because the report of his alleged association came from the United States Attorney's office.

 The defendant's exhibit No. 6 indicates that the Memphis staff tentatively designated Lee as both a Category 9 and Category 12 Central Monitoring Case. Category 9 indicates that the prisoner is in need of special monitoring because of past involvement with extremist groups. Category 12 indicates that the special monitoring is necessary so ...


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