Wilcox v. Selph et al

Filing 3

ORDER directing the plaintiff to amend the complaint within 14 days of the order, (Compliance due by 4/26/2017). Signed by Magistrate Judge Brian K. Epps on 4/12/17. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
MATTHEUS ANTUAN WILCOX,

)
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Plaintiff,
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v.
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BRYAN SELPH, Magistrate Judge;
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JEFFERY DEAL, Telfair County Jail Drug
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Investigator; and TELFAIR COUNTY
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JAIL,
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Defendants.
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_________

CV 317-015

ORDER
_________
Plaintiff, a pre-trial detainee at the Coffee County Jail in Douglas, Georgia, has
submitted a complaint for filing and seeks to proceed in forma pauperis (“IFP”) regarding
events occurring in Telfair County, Georgia. Upon review of Plaintiff’s filings, it is unclear
whether he is attempting to assert a claim pursuant to 42 U.S.C. § 1983, or is attempting to
petition for habeas corpus relief pursuant to 28 U.S.C. § 2241. In his complaint, Plaintiff
alleges Defendants failed to grant him an initial appearance within seventy-two hours. (See
generally doc. no. 1.) However, in his request for relief, Plaintiff asks “to receive payments
for the ecessive [sic] days I spent [in jail].” (Doc. no. 1, p. 5.)
To state a claim pursuant to § 1983, a plaintiff must allege the violation of a right
secured by the Constitution of the United States by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988). However, Plaintiff’s complaint is not clear as to

whether he is challenging alleged procedural deficiencies related to his initial appearance that
might allow him to seek nominal damages under § 1983, or whether he is seeking immediate
release from custody.
To the extent Plaintiff, as a pre-trial detainee, seeks release from custody, a pre-trial
petition for habeas corpus relief by a state prisoner is properly filed pursuant to 28 U.S.C.
§ 2241.

Hughes v. Attorney Gen. of Fla., 377 F.3d 1258, 1261-62 (11th Cir. 2004);

Medberry v. Crosby, 351 F.3d 1049, 1060 (11th Cir. 2003) (“State pre-trial detention, for
example, might violate the Constitution or the laws or treaties of the United States. Yet a
person held in such pre-trial detention would not be ‘in custody pursuant to the judgment of a
State court.’ Such a prisoner would file an application for a writ of habeas corpus governed
by § 2241 only.”).
Lastly, because it is unclear whether Plaintiff intends to proceed with a habeas corpus
case or § 1983 civil rights case, it is also unclear whether, through his IFP motion, Plaintiff is
contending he cannot pay the $5.00 habeas corpus filing fee or the $350.00 filing fee for an
IFP civil rights complaint.
Accordingly, Plaintiff shall have fourteen days from the date of this Order to inform
the Court by a written filing bearing the case caption above whether he intends to proceed
with a § 1983 complaint or a § 2241 habeas corpus petition. The Court DIRECTS the
CLERK to include an appropriate form civil rights complaint used by incarcerated litigants
in the Southern District of Georgia and a form habeas corpus petition with Plaintiff’s service

2

copy of this Order. Plaintiff should submit only one form in response to this Order.1 Once
Plaintiff makes his selection by returning the appropriate, completed form, the Court will
consider the merits of Plaintiff’s IFP motion. Failure to comply with the terms of this Order
within fourteen days may result in a recommendation that this case be dismissed.
SO ORDERED this 12th day of April, 2017, at Augusta, Georgia.

1

If Petitioner wants to proceed with a civil rights complaint for damages and a habeas
corpus petition requesting release from custody, he must proceed in two separate cases, requiring
two separate filing fees or IFP motions.
3