Adams v. Berkebile

Filing 5

ORDER denying 4 Motion Pursuant to Fed. R. Civ. P. Rule 54(b), by Magistrate Judge Boyd N. Boland on 9/17/2013. ORDERED that Mr. Adams shall have 30 days from the date of this Order to comply with the 7/31/2013 Order.(skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02001-BNB
ERIC ADAMS,
Applicant,
v.
D. BERKEBILE, Warden,
Respondent.

ORDER

Plaintiff, Eric Adams, is in the custody of the United States Bureau of Prisons and
currently is incarcerated at ADX in Florence, Colorado. Originally, Mr. Adams, acting
pro se, initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 and paying the $5 filing fee.
In an order entered on July 31, 2013, the Court found that Mr. Adams is asserting
conditions of confinement claims rather than habeas corpus claims in this action. The
Court construed the action as filed pursuant to Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and instructed Mr. Adams to submit his
claims on a Court-approved form used in filing prisoner complaints. Mr. Adams also
was instructed to submit to the Court a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 and a certified copy of his inmate trust fund
account statement for the six months prior to the filing of the instant action, if he desired
to proceed in forma pauperis. Otherwise, he was directed to pay the remaining $395.00
balance of the $400 filing fee in full.

Rather than comply with the July 31 Order, Mr. Adams filed a “Motion Pursuant
to Fed. R. Civ. P. Rule 54(b),” ECF No. 4.
In the Application, Mr. Adams claims that he was given a bag meal for five days
in violation of Program Statement 4700.06. As relief, Mr. Adams seeks an extra meal
for five days, or in the alternative thirty honey buns. In the Rule 54(b) Motion, Mr.
Adams contends that because he is filing this action against BOP staff in their official
capacities the action is construed as filed against the United States and properly is filed
under § 2241.
Nothing Mr. Adams asserts in the Rule 54(b) Motion supports a finding that the
alleged violation of PS 4700.06 is properly filed in a § 2241 action. Even though a claim
for injunctive relief alone may not be filed pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Mr. Adams may pursue his
claims challenging any alleged constitutionality of the program statements and related
requests for injunctive relief in a civil rights action under 28 U.S.C. § 1331. See Simmat
v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231–32, 1236 (10th Cir. 2005) (stating that
28 U.S.C. § 1331 is a sufficient statutory basis for equity jurisdiction over federal
prisoner's constitutional claims seeking injunctive relief against federal actors
concerning conditions of confinement). The Court, therefore, will deny the Rule 54(b)
Motion. Accordingly, it is
ORDERED that the Motion Pursuant to Fed. R. Civ. P. Rule 54(b), ECF No. 4, is
denied. It is
FURTHER ORDERED that Mr. Adams shall have thirty days from the date of this
Order to comply with the July 31, 2013 Order. It is

2

FURTHER ORDERED that if Mr. Adams fails to comply within the time allowed
the action will be dismissed without further notice.
DATED September 17, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

3