Lewis v. Britten et al
Filing
8
MEMORANDUM AND ORDER - Petitioner's Motion to Reassign Case (filing no. 6 ) is denied. By July 26, 2013, Respondent shall file a motion for summary judgment or state court records in support of an answer. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: July 26, 2013: deadline for Respondent to file state court records in support of answer or motion for summary judgment. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: August 25, 2013: check for Respondent to file answer and separate brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERIC FRITGERALD LEWIS,
Petitioner,
v.
FRED BRITTEN, ROBERT
HOUSTON, Director, and STATE
OF NEBRASKA,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
4:13CV3093
MEMORANDUM
AND ORDER
This matter is before the court on Petitioner’s Motion to Reassign Case (filing
no. 6) and on initial review of Petitioner’s Petition for Writ of Habeas Corpus (filing
no. 1) (“Petition”).
I.
MOTION TO REASSIGN CASE
On May 17, 2013, Petitioner filed a Motion to Reassign Case. (Filing No. 6.)
In his Motion, Petitioner states that he has a “conflict” with the undersigned judge, but
he does not identify what the nature of the conflict is. (Id.) The court has carefully
reviewed Petitioner’s motion in accordance with 28 U.S.C. 455(a), and finds there is
nothing indicating that the undersigned Judge’s “impartiality might reasonably be
questioned” or that there is any basis for recusal or reassignment in this matter.
II.
INITIAL REVIEW
The court has conducted an initial review of the Petition for Writ of Habeas
Corpus (filing no. 1) to determine whether the claims made by Petitioner are, when
liberally construed, potentially cognizable in federal court. Petitioner has made two
claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One1:
Petitioner was subject to cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments because Douglas County Jail
employees (1) assaulted Petitioner when he arrived
at the jail, (2) assaulted Petitioner after he filed a
lawsuit against the District Judge and the County
Attorney, and (3) forced Petitioner to take
medication.
Claim Two2:
Petitioner was denied due process in violation of the
Fifth and Fourteenth Amendments because
Petitioner was released to the Douglas County
Sheriff “without a proper validated detainer per
policy of the Nebraska Department of Correctional
Service[s.]”
Liberally construed, the court preliminarily decides that Claim Two is
potentially cognizable in under 28 U.S.C. § 2254. However, the court cautions that
no determination has been made regarding the merits of Petitioner’s claim or any
defenses thereto or whether there are procedural bars that will prevent Petitioner from
obtaining the relief sought.
Liberally construed, the court preliminarily decides that Claim One is not
cognizable under 28 U.S.C. § 2254. Although Petitioner alleges Douglas County Jail
employees assaulted him and forced him to take medication, he does not allege that
these actions extended his period of confinement. Indeed, such claims must be
brought as an administrative grievance or an action under 42 U.S.C. § 1983. See
Khaimov v. Crist, 297 F.3d 783, 785–86 (8th Cir. 2002) (concluding petitioner’s
Claim One contains claims asserted by Petitioner in Grounds One, Two,
Three, and Four of the Petition. (Filing No. 1 at CM/ECF pp. 6, 33-35, 57.)
1
Claim Two contains claims asserted by Petitioner in Grounds One, Two,
Three, and Four of the Petition. (Id.)
2
complaints regarding his conditions of confinement should be brought in an
administrative grievance or an action under section 1983 where petitioner did not
allege that the conditions extended his period of confinement); Heck v. Humphrey,
512 U.S. 477, 481–82 (1994) (a prisoner’s action challenging the validity or length
of confinement must be brought in habeas, but a challenge to conditions of
confinement should be brought under section 1983 so long as the relief sought does
not have the effect of invalidating the underlying conviction).
IT IS THEREFORE ORDERED that:
1.
Petitioner’s Motion to Reassign Case (filing no. 6) is denied.
2.
Upon initial review of the Petition (filing no. 1), the court preliminarily
determines that the following claims are potentially cognizable under 28 U.S.C. §
2254: Claim Two as set forth in this Memorandum and Order.
3.
Upon initial review of the Petition (filing no. 1), the court preliminarily
determines that the following claims are not cognizable under 28 U.S.C. § 2254:
Claim One as set forth in this Memorandum and Order. Claim One is therefore
dismissed without prejudice to reassertion as an administrative grievance or an action
under 42 U.S.C. § 1983.
4.
By July 26, 2013, Respondent shall file a motion for summary judgment
or state court records in support of an answer. The Clerk of the court is directed to set
a pro se case management deadline in this case using the following text: July 26,
2013: deadline for Respondent to file state court records in support of answer or
motion for summary judgment.
5.
If Respondent elects to file a motion for summary judgment, the
following procedures shall be followed by Respondent and Petitioner:
3
A.
The motion for summary judgment shall be accompanied by a
separate brief, submitted at the time of the filing of the motion.
B.
The motion for summary judgment shall be supported by such
state court records as are necessary to support the motion. Those
records shall be contained in a separate filing entitled:
“Designation of State Court Records in Support of Motion for
Summary Judgment.”
C.
Copies of the motion for summary judgment, the designation,
including state court records, and Respondent’s brief shall be
served upon Petitioner except that Respondent is only required to
provide Petitioner with a copy of the specific pages of the record
which are cited in Respondent’s brief. In the event that the
designation of state court records is deemed insufficient by
Petitioner, Petitioner may file a motion with the court requesting
additional documents. Such motion shall set forth the documents
requested and the reasons the documents are relevant to the
cognizable claims.
D.
No later than 30 days following the filing of the motion for
summary judgment, Petitioner shall file and serve a brief in
opposition to the motion for summary judgment. Petitioner shall
submit no other documents unless directed to do so by the court.
E.
No later than 30 days after the filing of Petitioner’s brief,
Respondent shall file and serve a reply brief. In the event that
Respondent elects not to file a reply brief, he should inform the
court by filing a notice stating that he will not file a reply brief and
that the motion is therefore fully submitted for decision.
4
F.
If the motion for summary judgment is denied, Respondent shall
file an answer, a designation and a brief that complies with terms
of this order. (See the following paragraph.) The documents shall
be filed no later than 30 days after the denial of the motion for
summary judgment. Respondent is warned that the failure to
file an answer, a designation and a brief in a timely fashion
may result in the imposition of sanctions, including the release
of Petitioner.
6.
If Respondent elects to file an answer, the following procedures shall be
followed by Respondent and Petitioner:
A.
By July 26, 2013, Respondent shall file all state court records
which are relevant to the cognizable claims. See, e.g., Rule 5(c)(d) of the Rules Governing Section 2254 Cases in the United
States District Courts. Those records shall be contained in a
separate filing entitled: “Designation of State Court Records In
Support of Answer.”
B.
No later than 30 days after the filing of the relevant state court
records, Respondent shall file an answer. The answer shall be
accompanied by a separate brief, submitted at the time of the
filing of the answer. Both the answer and brief shall address all
matters germane to the case including, but not limited to, the
merits of Petitioner’s allegations that have survived initial review,
and whether any claim is barred by a failure to exhaust state
remedies, a procedural bar, non-retroactivity, a statute of
limitations, or because the petition is an unauthorized second or
successive petition. See, e.g., Rules 5(b) and 9 of the Rules
Governing Section 2254 Cases in the United States District
Courts.
5
C.
Copies of the answer, the designation, and Respondent’s brief
shall be served upon Petitioner at the time they are filed with the
court except that Respondent is only required to provide Petitioner
with a copy of the specific pages of the designated record which
are cited in Respondent’s brief. In the event that the designation
of state court records is deemed insufficient by Petitioner,
Petitioner may file a motion with the court requesting additional
documents. Such motion shall set forth the documents requested
and the reasons the documents are relevant to the cognizable
claims.
D.
No later than 30 days following the filing of Respondent’s brief,
Petitioner shall file and serve a brief in response. Petitioner shall
submit no other documents unless directed to do so by the court.
E.
No later than 30 days after the filing of Petitioner’s brief,
Respondent shall file and serve a reply brief. In the event that
Respondent elects not to file a reply brief, he should inform the
court by filing a notice stating that he will not file a reply brief and
that the merits of the petition are therefore fully submitted for
decision.
F.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: August 25, 2013:
check for Respondent to file answer and separate brief.
7.
No discovery shall be undertaken without leave of the court. See Rule
6 of the Rules Governing Section 2254 Cases in the United States District Courts.
6
DATED this 13th day of June, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
7
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?