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Feather-Gorbey v. Federal Bureau of Prisons

United States District Court, N.D. Texas, Dallas Division

April 15, 2019

MICHAEL S. OWL FEATHER-GORBEY (BOP Register No. 33405-013), Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, ET AL., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE

         Michael S. Owl Feather-Gorbey (“Gorbey”), a federal prisoner in custody at FCI Cumberland, in the District of Maryland, returns to this Court by filing pro se a Pre-Bivens/Federal Tort Claim, Motion for “Emergency” Temporary Restraining Order (TRO) or Preliminary Injunction [Dkt. No. 3]. Gorbey also moves for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 4. His action has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Ed Kinkeade. The undersigned enters these findings of fact, conclusions of law, and recommendation that, for the reasons explained below, the Court should summarily dismiss this action with prejudice.

         Applicable Background

         As the undersigned set out in Gorbey's previous appearance in this district,

Gorbey, whether proceeding under his current moniker or as “Michael S. Gorbey” or “Michael Steven Owlfeather, ” is no stranger to the federal courts. See, e.g., Gorbey v. Obama, No. 7:16-cv-00455, 2016 WL 7157989 (W.D. Va. Dec. 6, 2016) (admonishing Gorbey that “[p]risoners do not have an absolute and unconditional right of access to the courts in order to prosecute frivolous, malicious, abusive, or vexatious motions or actions”; warning him “that continuing to file frivolous, malicious, abusive, or vexatious filings may result in the imposition of a pre-filing injunction”; and noting that Gorbey has filed at least “twenty-five cases that qualify as strikes under 28 U.S.C. § 1915(g)” (as to the last point citing Gorbey v. Fed. Bureau of Alcohol, Tobacco, Firearms. & Explosives, et al., No. 5:11-cv-00126, slip op. at 5-10 (N.D. W.Va. Mar. 14, 2012))).

Owl Feather-Gorbey v. Adm'r F. BOP Grand Prairie, No. 3:17-cv-26-L-BN, 2017 WL 8727979, at *1 (N.D. Tex. Feb. 9, 2017), rec. accepted, 2018 WL 1609751 (N.D. Tex. Apr. 3, 2018).

         A cursory review of cases that Gorbey has filed since this decision reveals that his filings have continued.

         It seems that Gorbey has again filed in this district because the Bureau of Prisons's Designation and Sentence Computation Center is located in Grand Prairie, Texas. And, similar to claims made in his previous suit in this district, Gorbey currently seeks to enjoin the BOP from transferring him to another facility, “especially ... to any high level facility pending exhaustion of administrative remedies and should any such transfer be already in place or already complete an injunction or retraining order to have Gorbey (immediately) sent back to F.C.I. Cumberland pending exhaustion of any and all administrative remedies already in progress.” Dkt. No. 3 at 8. He further requests “an injunction or restraining order to have staff to stop holding me in SHU without any pending disciplinary action at FCI Cumberland”; a hearing; and “compensation for any & all damages.” Id.

         Legal Standards and Analysis

         I. Nature of Relief

         As the United States Court of Appeals for the Fifth Circuit put the question in an action brought by a state prisoner,

[b]oth 28 U.S.C. § 2254 and 42 U.S.C. § 1983 offer relief to those improperly confined by the government. Which statutory vehicle to use depends on the nature of the claim and the type of relief requested, the instructive principle being that challenges to the fact or duration of confinement are properly brought under habeas, while challenges to the conditions of confinement are properly brought under § 1983.

Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017) (footnotes omitted).

         Gorbey neither challenges the fact nor duration of his confinement. He instead challenges the performance of the federal agency responsible for confining him by requesting that the Court prevent that agency from changing his place of confinement. “[A] request by a federal prisoner [regarding] a change in the place of confinement is properly construed as a challenge to the conditions of confinement and, thus, must be brought pursuant to Bivens v. Six Unknown Named Agents ...


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