McClellon v. United States of America

Background

Donte McClellon, proceeding without a lawyer, filed an action seeking damages against the United States under the Federal Tort Claims Act and under a constitutional-tort theory associated with Bivens v. Six Unknown Agents of Federal Bureau of Narcotics. He alleged that, after his 2024 conviction for bank and wire fraud and 42-month prison sentence, the Bureau of Prisons failed to credit him with various sentence reductions, including good-conduct time, First Step Act credits, and Residential Drug Abuse Program credits.

The United States moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s subject-matter jurisdiction. The government principally argued that McClellon had not exhausted the administrative remedies required for his Federal Tort Claims Act claim and that the United States had not waived its protection from constitutional-tort claims seeking money damages. The court did not rule on that motion in this order.

Extension of Time

McClellon’s opposition to the motion to dismiss was originally due November 24, 2025. The court noted that he had been moved among several federal facilities and that the motion papers had been mailed to him multiple times. The court therefore extended his deadline to file an opposition until December 15, 2025, and stated that it would grant no further extensions absent compelling circumstances.

Motion for Service

McClellon requested an order directing the U.S. Marshals Service to serve the summons and complaint. The court denied that motion as moot because the United States had already appeared and was defending the action.

Motion for Pro Bono Counsel

McClellon also requested appointment of pro bono counsel, meaning a lawyer who would represent him without charging him. The court explained that civil litigants do not have an automatic right to appointed counsel, and that courts may request volunteer representation only sparingly. It considered McClellon’s ability to litigate without assistance and the apparent strength of his claims. The court found that he had demonstrated an ability to litigate on his own and was not persuaded, based on the government’s dismissal motion and an earlier recommendation in a related proceeding, that his claims had substance or were likely to succeed. The court denied the request for pro bono counsel.

Disposition

The court extended McClellon’s time to respond to the motion to dismiss until December 15, 2025. It denied both the motion for pro bono counsel and the motion for an order directing service. The order did not decide the pending motion to dismiss.