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Ybarra v. Kieth

United States District Court, N.D. Texas

July 4, 2019

JEREMIAH YBARRA, Prison ID # 55024-280, Plaintiff,
v.
BILLY KIETH, et al., Defendants.

          REPORT AND RECOMMENDATION

          E. SCOTT FROST UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a prisoner housed in FCI Big Spring of the Bureau of Prisons ("BOP"), filed a document titled "Motion to Intervene" in No. 1:18-CV-l 14-C. Because Plaintiff therein complained of conditions of his confinement at Big Spring, the Court found that Plaintiff was raising new civil rights claims unrelated to claims asserted in No. 1:18-CV-l 14-C; ordered that the motion be construed as a new civil rights complaint; and directed the Clerk of Court to open a new civil case. See Order (doc. 1). Shortly after the opening of this case, Plaintiff filed an amended complaint with an application to proceed in forma pauperis. See Docs. 5-6. The Court granted him permission to proceed in forma pauperis. See PLRA Filing Fee Order (doc. 8).

         On November 9, 2018, the District Judge referred the case for disposition pursuant to 28 U.S.C. § 636(b)(1). See Order (doc. 9). Plaintiff thereafter moved for discovery and sought leave to add claims, which the undersigned denied by order dated February 26, 2019, but granted Plaintiff thirty days to file a motion for leave to amend in accordance with the local rules of this court. See Order (doc. 12). Plaintiff filed a Second Amended Complaint (doc. 13), with supporting memorandum (doc. 14), which the undersigned accepted as the operative pleading on April 9, 2019. See Order (doc. 15). This amended complaint "supersedes the original complaint and renders it of no legal effect." King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam) (stating that general rule).

         Because Plaintiff has not consented to have all further proceedings in this case conducted by a magistrate judge, the undersigned issues this report and recommendation and directs that this case be reassigned to Senior District Judge Sam R. Cummings.

         I. BACKGROUND [1]

         Plaintiff names the following defendants in this action: (1) Warden Billy Kieth; (2) Lieutenant Jackson; (3) Officer Coger-Crews; (4) Officer E. Barton; and Disciplinary Hearing Officer Cole. See Second Am. Compl. at 3. For each of these defendants, Plaintiff briefly describes their acts or omissions that allegedly harmed him. See Id. He also provides a Statement of Claim with two attached pages to support his claims. Id. at 4 and attached pages 1A and IB. His claims stem from a June 25, 2018 search of his prison locker, a resulting incident report, and subsequent discipline imposed in September 2018. See Id. As relief, Plaintiff seeks an investigation of the facility for staff misconduct. Id. at 4. He also seeks the return of lost good conduct time and his prior camp status in addition to a transfer to a prison facility in Michigan. Id.

         With the filing of his Second Amended Complaint, Plaintiff included a memorandum and other documents in support. See Doc. 14. In the memorandum, Plaintiff elaborates on his claims and questions the constitutionality of the acts of defendants. See id.

         II. NATURE OF ACTION

         Plaintiff and the Court have treated this case as a civil rights action throughout this litigation. However, in his Second Amended Complaint, Plaintiff - for the first time in this action - seeks restoration of good-time credits lost through a prison disciplinary hearing. Such relief is properly sought through 28 U.S.C. § 2241, not a civil rights action. See Henson v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000) (per curiam);[2] Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc). But, while Plaintiff has added potential habeas relief in this action, he has not invoked § 2241 or any habeas statute, and has not named as the appropriate respondent, "the warden of the federal prison at which he was confined," see Griffin v. Ebbert, 751 F.3d 288, 289 (5th Cir. 2014). He merely names the Warden as one of five defendants in this civil action.

         At the current stage of this litigation, the Court should not consider this action as anything other than a prisoner civil action asserting violations of constitutional rights. Although a § 2241 action based on the loss of his good-time credits is properly brought here, the Court should not construe this action as a habeas action under § 2241 due to varied procedural and substantive differences between habeas and typical civil actions. When a case combines civil rights and habeas, the better course is to address the issues in the context presented without prejudice to the plaintiff/petitioner pursuing reliefin the other context through a separate case. See Cheneyv. United States, No. 3:04-CV-2207-L, 2005 WL 130127, at *1 (N.D. Tex. Jan. 20, 2005) (considering habeas case in that context while permitting the petitioner to also pursue civil rights claims in a separate case).

         To the extent Plaintiff wants to pursue habeas relief, he may do so by filing a petition under 28 U.S.C. § 2241 naming the Warden as the proper respondent. He will not be prejudiced by the Court declining to construe any part of this case as a habeas action because he can still file such a petition and the Fifth Circuit has not applied a statute of limitations to such a petition. See Miller v. Stephens, No. 2:14-CV-0103, 2017 WL 3142402, at *1 (N.D. Tex. June 15, 2017) (recommendation of Mag. J.) adopted by 2017 WL 3130330 (N.D. Tex. July 21, 2017); Na'im v. Tex. Bd. of Pardons & Paroles, No. 3:12-CV-2827-D, 2013 WL 2367788, at *1 (N.D. Tex. May 30, 2013) (adopting recommendation of Mag. J.).

         III. PRELIMINARY SCREENING

         The Court has permitted Plaintiff to proceed in for ma pauperis in this action. His complaint is therefore subject to screening under 28 U.S.C. § 1915(e)(2)(b). This statute provides for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.

         A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams,490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. A complaint fails to state a claim upon which relief may be granted when it fails to plead "enough facts to state a claim to relief that is ...


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