United States District Court, N.D. Texas
REPORT AND RECOMMENDATION
SCOTT FROST UNITED STATES MAGISTRATE JUDGE
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).
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
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.
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.
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.
NATURE OF ACTION
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); 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
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).
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.).
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.
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