United States District Court, N.D. Texas, Dallas Division
MICHAEL S. OWL FEATHER-GORBEY (BOP Register No. 33405-013), Plaintiff,
FEDERAL BUREAU OF PRISONS, ET AL., Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
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.
undersigned set out in Gorbey's previous appearance in
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).
cursory review of cases that Gorbey has filed since this
decision reveals that his filings have continued.
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.”
Standards and Analysis
Nature of Relief
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 §
Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017)
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 ...