MCGILL v. GARTLAND
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS as moot McGill's 1 Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY McGill in forma pauperis status on a ppeal. 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 11/3/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/20/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 5:17-cv-128
PATRICK GARTLAND, 1
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Charles McGill (“McGill”), formerly housed at the Immigration and Customs
Enforcement (“ICE”) Processing Center in Folkston, Georgia, filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) McGill neither paid the requisite filing fee nor
moved to proceed in forma pauperis. For the reasons which follow, I RECOMMEND that the
Court DISMISS as moot McGill’s Petition, DIRECT the Clerk of Court to CLOSE this case
and enter the appropriate judgment of dismissal, and DENY McGill in forma pauperis status on
McGill filed his Petition in the Middle District of Georgia on September 6, 2017.
(Doc. 1.) That court transferred McGill’s Petition to this Court on September 22, 2017, as
McGill was housed at a facility within this District. (Doc. 4.) In his Petition, McGill asserts he
The only proper respondent in a 28 U.S.C. § 2241 petition is the inmate’s immediate custodian—the
warden of the facility where the inmate is confined. See Rumsfeld v. Padilla, 542 U.S. 426, 434–35
(2004). As Patrick Gartland is the Warden of the Folkston ICE Processing Center in Folkston, Georgia,
the Court DIRECTS the Clerk of Court to change the name of the Respondent to Patrick Gartland upon
the docket and record of this case.
is a citizen and native of Liberia who came to the United States in 1992. McGill asserts the
Immigration and Naturalization Service, which is now ICE, issued a Notice to Appear dated
January 2010 and placed him in deportation proceedings. McGill states he had been detained
beyond a “reasonable period of time”, which has been determined to presumptively be six
months’ time. 2 (Doc. 1, p. 3.) McGill requests release from custody pursuant to the United
States Supreme Court’s decision on Zadvydas v. Davis, 533 U.S. 678 (2001). 3
On September 22, 2017, the Clerk of Court advised McGill he had not paid the requisite
filing fee and sent him blank copies of habeas corpus and in forma pauperis forms at his last
known address. (Doc. 7.) However, this mailing was returned to the Court with the notation
“released” on the envelope. (Doc. 8.) Thus, the Court must determine whether McGill’s release
from custody at the ICE facility renders his Petition moot and whether his Petition should be
dismissed as a result.
Whether McGill’s Petition is Moot
Article III of the Constitution “extends the jurisdiction of federal courts to only ‘Cases’
and ‘Controversies.’” Strickland v. Alexander, 772 F.3d 876, 882 (11th Cir. 2014). This “caseor-controversy restriction imposes” what is “generally referred to as ‘justiciability’ limitations.”
Id. There are “three strands of justiciability doctrine—standing, ripeness, and mootness—that go
to the heart of the Article III case or controversy requirement.” Harrell v. The Fla. Bar, 608
Under the Immigration and Nationality Act, “when an alien is ordered removed, the Attorney General
shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. §1231(a)(1)(A).
During that period, the Attorney General must detain the alien. 8 U.S.C. §1231(a)(2).
In Zadvydas, the United States Supreme Court held that indefinite detention of aliens raises serious
constitutional concerns. 533 U.S. at 701. Thus, once an order of removal becomes final, ICE should
make every effort to remove the alien within a reasonable time. Id. The Supreme Court found that six
months is a presumptively reasonable period to detain a removable alien awaiting deportation. Id.
F.3d 1241, 1247 (11th Cir. 2010) (internal quotation marks and alterations omitted). With regard
to the mootness strand, the United States Supreme Court has made clear that “a federal court has
no authority ‘to give opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in issue in the case before it.’” Church
of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal citation omitted).
Accordingly, “[a]n issue is moot when it no longer presents a live controversy with respect to
which the court can give meaningful relief.” Friends of Everglades v. S. Fla. Water Mgmt. Dist.,
570 F.3d 1210, 1216 (11th Cir. 2009) (internal quotation marks omitted).
justiciability are not answered “simply by looking to the state of affairs at the time the suit was
filed. Rather, the Supreme Court has made clear that the controversy ‘must be extant at all
stages of review, not merely at the time the complaint is filed.’” Christian Coal. of Fla., Inc. v.
United States, 662 F.3d 1182, 1189–90 (11th Cir. 2011) (quoting Preiser v. Newkirk, 422 U.S.
395, 401 (1975)).
As noted above, McGill has been released from confinement at the Folkston ICE facility.
As McGill only requests his release from the custody of ICE in his Petition, and it appears he has
been released from ICE’s custody, there is no longer a “live controversy” over which the Court
can give meaningful relief. Friends of Everglades, 570 F.3d at 1216. Accordingly, the Court
should DISMISS as moot McGill’s Petition for Writ of Habeas Corpus.
Leave to Appeal in Forma Pauperis
The Court should also deny McGill leave to appeal in forma pauperis. Though McGill
has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. 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 indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). 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).
Given the above analysis of McGill’s Petition, 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 in
forma pauperis status on appeal.
Based on the foregoing, I RECOMMEND that the Court DISMISS as moot McGill’s
Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, (doc. 1), DIRECT the
Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY
McGill leave to proceed in forma pauperis.
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
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 Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon McGill at his last known
SO ORDERED and REPORTED and RECOMMENDED, this 20th day of October,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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