Mick v. Randall
MEMORANDUM AND ORDER - Upon initial review of Mick's Petition for Writ of Habeas Corpus (Filing No. 1 ), the court determines that Mick's claims are not cognizable in a federal court habeas corpus action. Mick's petition is dismissed without prejudice to reassertion in accordance with this memorandum and order. The court will not issue a certificate of appealability in this matter. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN E. MICK,
GARY B. RANDALL, District Judge;
This matter is before the court on initial review of Petitioner Steven E.
Mick’s (“Mick”) Petition for Writ of Habeas Corpus (“petition”) filed pursuant to
28 U.S.C. § 2241. (Filing No. 1.) For the reasons discussed below, the court will
dismiss Mick’s petition without prejudice.
Mick is a state pretrial detainee being held at the Douglas County
Correctional Center (“DCCC”) in Omaha, Nebraska. Condensed and summarized,
Mick asserts in his petition that staff at DCCC have denied him medical care for
his various ailments. Mick asks the court to order his immediate release or to make
DCCC pay for and arrange for him to see a foot specialist immediately. (Filing No.
Mick’s grounds for relief do not affect the fact or duration of his pretrial
detention. Mick is not challenging the legality of his pretrial detention. In addition,
favorable resolution of his claims would not automatically entitle him to release
from custody. Accordingly, “his claims fall outside the core of habeas corpus [and]
are not cognizable under the guise of a § 2241 petition.” Gould v. W.C.C.C., No.
4:14-cv-019, 2014 WL 940720, at *1 (D.N.D. Mar. 11, 2014) (collecting cases).
Because Mick seeks to remedy the conditions of his confinement, he must present
his claims in an action brought pursuant to 42 U.S.C. § 1983, not as an action for
habeas corpus relief. Muhammad v. Close, 540 U.S. 749, 750-51 (2004).
The court has considered whether it would be appropriate to construe Mick’s
petition as a civil action brought pursuant to § 1983 or re-characterize the petition
as one brought pursuant to § 1983. The court has determined that doing so would
be inappropriate because it would border on advocacy, see Richards v. Bellmon,
941 F.2d 1015, 1019 n. 3 (10th Cir. 1991), and it would enable Mick to
“circumvent the significantly higher fee required to file a civil rights complaint,”
see Barber v. Whetsel, No. CIV-14-455-D, 2014 WL 3670211, at *3 (W.D.Okla.
July 22, 2014). Further, Mick is familiar with a civil action brought pursuant to §
1983, as he recently filed such an action against DCCC and a corrections officer
employed at DCCC in Mick v. Wade, et al., 8:17CV147 (D. Neb. April 28, 2017).
Because it “plainly appears from the petition . . . that [Mick] is not entitled to
relief,” see Rule 4 of the Rules Governing Habeas Corpus Cases, the court will
dismiss this action without prejudice to reassertion in an action brought pursuant to
42 U.S.C. § 1983.
III. CERTIFICATE OF APPEALABILITY
Although Mick petitioned for relief under 28 U.S.C. § 2241, as a state
prisoner he is subject to the provisions governing 28 U.S.C. § 2254 and therefore
must obtain a certificate of appealability. See 28 U.S.C. § 2253; Fed. R. App. P.
22(b)(1). The standards for certificates (1) where the district court reaches the
merits or (2) where the district court rules on procedural grounds are set forth in
Slack v. McDaniel, 529 U.S. 473, 484-485 (2000). The court has applied the
appropriate standard and determined that Mick is not entitled to a certificate of
IT IS THEREFORE ORDERED that:
Upon initial review of Mick’s Petition for Writ of Habeas Corpus
(Filing No. 1), the court determines that Mick’s claims are not cognizable in a
federal court habeas corpus action. Mick’s petition is dismissed without prejudice
to reassertion in accordance with this memorandum and order. The court will not
issue a certificate of appealability in this matter.
The court will enter judgment by separate document.
Dated this 4th day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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