Lewis v. Bowie et al

Filing 7

MEMORANDUM AND ORDER - Upon initial review of the Petition (filing no. 1 ), the court preliminarily determines that the following claim is potentially cognizable under 28 U.S.C. § 2254: Claim Two as set forth in this Memorandum and Order. Upon initial review of the Petition (filing no. 1 ), the court preliminarily determines that the following claim is not cognizable under 28 U.S.C. § 2254: Claim One as set forth in this Memorandum and Order. Claim One is therefore dismissed wit hout prejudice to reassertion as an administrative grievance or an action under 42 U.S.C. § 1983. By September 2, 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: September 2, 2013: deadline for Respondent to file state court records in support of answer or motion for summary judgment. If Respondent elects to file an answer, the procedures shall be followed by Respondent and Petitioner. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: October 2, 2013: check for Respondent to file answer and separate brief. 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. 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 FRITZGERALD LEWIS,
Petitioner,
v.
JUDGE RUSSELL BOWIE, et al.,
Respondents.

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8:13CV193

MEMORANDUM
AND ORDER

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 claims1 asserted by Petitioner are:
Claim One: Petitioner was subject to cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments
because Petitioner was assaulted by Douglas County Jail
employees when he arrived at Douglas County Jail.
Claim Two: Petitioner was denied due process in violation of the Fifth
and Fourteenth Amendments because Petitioner was
released to the Douglas County Sheriff “without a
department approval of a detainer.” (Filing No. 1 at
CM/ECF p. 5.)
Liberally construed, the court preliminarily decides that Claim Two is
potentially cognizable 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
The court takes judicial notice that Petitioner made similar claims in a prior
petition filed May 2, 2013. (Case No. 4:13CV3093, Filing No. 1 at CM/ECF p. 5.)
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defenses thereto or whether there are procedural bars that will prevent Petitioner from
obtaining the relief sought.
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, he does not allege that these actions extended his period of confinement. Indeed,
such a claim 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 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.
Upon initial review of the Petition (filing no. 1), the court preliminarily
determines that the following claim is potentially cognizable under 28 U.S.C. § 2254:
Claim Two as set forth in this Memorandum and Order.
2.
Upon initial review of the Petition (filing no. 1), the court preliminarily
determines that the following claim is 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.
3.
By September 2, 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:
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September 2, 2013: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.
4.
If Respondent elects to file a motion for summary judgment, the
following procedures shall be followed by Respondent and Petitioner:
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.

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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.

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.

5.
If Respondent elects to file an answer, the following procedures shall be
followed by Respondent and Petitioner:
A.

By September 2, 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,
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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.
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.

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F.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: October 2, 2013:
check for Respondent to file answer and separate brief.

6.
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.
DATED this 25th day of July, 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.
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