Jerez-Toco v. Samuels et al
Filing
2
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Jerez-Toco's 1 Petition for Writ of Habeas Corpus without prejudice and CLOSE this case. It is also RECOMMENDED that the Court DENY Jerez-Toco in forma pauperis statu s on appeal. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 11/4/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/21/2016. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION
NERY ROLANDO JEREZ-TOCO,
Petitioner,
CIVIL ACTION NO.: 5:16-cv-91
v.
CHARLES SAMUELS; WARDEN TRACY
JOHNS; and GEORGE ZOLEY,
Respondents.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Nery Roland Jerez-Toco, (“Jerez-Toco”), who is currently incarcerated at D. Ray
James Correctional Facility in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. (Doc. 1.) For the reasons which follow, I RECOMMEND that the
Court DISMISS Jerez-Toco’s Petition without prejudice and CLOSE this case.
I also
RECOMMEND that the Court DENY Jerez-Toco in forma pauperis status on appeal.
BACKGROUND
Jerez-Toco was convicted in the Western District of Pennsylvania, after entry of a guilty
plea, of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846.
J., United States v. Jerez-Toco, No. 2:11-cr-00185-DWA-3 (W.D. Penn. Apr. 4, 2014), ECF No.
752. He was sentenced to 70 months’ imprisonment on April 2, 2014. Id. On July 29, 2015,
Jerez-Toco’s sentence was reduced to 60 months’ imprisonment to be followed by four years of
supervised release. Am. J., United States v. Jerez-Toco, No. 2:11-cr-00185-DWA-3 (W.D. Penn.
July 29, 2015), ECF No. 828.
Throughout his Petition, Jerez-Toco makes allegations concerning the conditions of his
custody at D. Ray James Correctional Facility. Specifically, Jerez-Toco alleges that Defendants’
failure to provide sufficient medical care for injuries he sustained to his leg and back violates the
Eighth Amendment’s prohibition against deliberate indifference to his serious medical needs.
(Doc. 1, p. 2.) As a remedy, Petitioner requests that the Court order D. Ray James Correctional
Facility or the Bureau of Prisons to provide him proper medical care. (Id. at p. 8.)
I.
Whether Jerez-Toco Presents Claims Which can be Addressed by a Writ of Habeas
Corpus
Despite Jerez-Toco’s characterization of his pleading as one made pursuant to 28 U.S.C.
§ 2241, the contentions he sets forth fall outside the purview of that statute. His claims would
ordinarily be brought pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). The distinction between claims which may be
brought under Bivens and those which must be brought as habeas petitions is reasonably well
settled. Claims in which federal prisoners assert that they are being subjected to unconstitutional
punishment not imposed as part of their sentence are Bivens actions, not habeas actions. See, e.g.,
Farmer v. Brennan, 511 U.S. 825 (1994). Habeas actions, in contrast, explicitly or by necessary
implication, challenge a prisoner’s conviction or the sentence imposed on him by a court (or under
the administrative system implementing the judgment). Thus, for example, when a prisoner makes
a claim that, if successful, could shorten or invalidate his term of imprisonment, the claim must be
brought as a habeas petition, not as a Bivens claim. See, e.g., Edwards v. Balisok, 520 U.S. 641
(1997); Heck v. Humphrey, 512 U.S. 477 (1994).
Jerez-Toco cannot bring the claims he asserts via a habeas petition. His claims concerning
deliberate indifference to his serious medical needs under the Eighth Amendment are not
cognizable pursuant to 28 U.S.C. § 2241. Moreover, he does not seek to challenge his sentence,
2
his conviction, or the duration of his confinement. Accordingly, the Court should DISMISS JerezToco’s Petition without prejudice.
II.
Whether the Court Should Recharacterize Jerez-Toco’s Petition
“Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a
motion and recharacterize the motion in order to place it within a different legal category.” Retic
v. United States, 215 F. App’x 962, 964 (11th Cir. 2007) (quoting Castro v. United States, 540
U.S. 375, 381 (2003)). This Court may “recharacterize a pro se litigant’s motion to create a better
correspondence between the substance of the motion and its underlying legal basis.” Rameses v.
United States District Court, 523 F. App’x 691, 694 (11th Cir. 2013). Federal courts “may do so
in order to avoid an unnecessary dismissal, to avoid inappropriately stringent application of formal
labeling requirements, or to create a better correspondence between the substance of the motion
and its underlying legal basis.” Id. (quoting Castro, 540 U.S. at 381–82).
However, it would be futile, and thus, improper to recharacterize Jerez-Toco’s Petition as
a Bivens action. The United States Supreme Court has held that a federal prisoner cannot bring a
Bivens claim against employees of a privately operated federal prison when state law authorizes
adequate alternative damages actions.1 Minneci v. Pollard, ___ U.S. ___, 132 S. Ct. 617 (Jan. 10,
2012). The Court stated that “in the case of a privately employed defendant, state tort law provides
an ‘alternative, existing process’ capable of protecting the constitutional interests at stake.” Id. at
___, 132 S. Ct. at 623 (quoting Wilkie v. Robbins, 551 U.S. 537, 559 (2007)) (declining to extend
1
In the Eleventh Circuit, such a claim has been foreclosed since 2008. See Alba v. Montford, 517 F.3d
1249 (11th Cir. 2008) (declining to extend Bivens to cover a claim for deliberate indifference to medical
needs against Corrections Corporation of America, a private facility under contract with the Bureau of
Prisons, and its employees).
3
Bivens liability to allow a landowner to pursue a private action against employees of the Bureau
of Land Development).
D. Ray James Correctional Facility is a private entity that operates under a contract with
the Bureau of Prisons. The employees of D. Ray James, including Respondents, are employees of
The GEO Group, Inc., a private entity. Like the plaintiffs in Minneci and Alba, so long as JerezToco has adequate state law remedies available to him, he may not maintain a cause of action
pursuant to Bivens against The GEO Group, Inc., or its employees (such as Respondents) because
The GEO Group, Inc., and its employees are private parties. Thus, Jerez-Toco’s remedy, if any,
against Respondents lies in state court.2 Consequently, Jerez-Toco cannot bring a Bivens action
against the named parties.
III.
Leave to Appeal In Forma Pauperis
The Court should also deny Jerez-Toco leave to appeal in forma pauperis. Though Jerez-
Toco has, of course, not yet filed a notice of appeal, it is proper to address these issues in the
Court’s order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of
party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal
is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is not
taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context
must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691 (M.D.
Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous claim or
argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or argument is
frivolous when it appears the factual allegations are clearly baseless or the legal theories are
2
The Court offers no opinion as to the efficacy of such a pursuit.
4
indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d
392, 393 (11th Cir. 1993). Or, stated another way, an in forma pauperis action is frivolous and,
thus, not brought in good faith, if it is “without arguable merit either in law or fact.” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085,
403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Jerez-Toco’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Jerez-Toco in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS Jerez-Toco’s Petition
for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, and CLOSE this case. I also
RECOMMEND that the Court DENY Jerez-Toco in forma pauperis status on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle through
which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
5
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United States
Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment
entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED to serve a
copy of this Report and Recommendation upon Jerez-Toco.
SO ORDERED and REPORTED and RECOMMENDED, this 21st day of October,
2016.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?