WASSON v. HIGHTOWER
MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 7/26/2016. (tf,n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 16-1552 (JBS)
SIMANDLE, Chief Judge:
Petitioner Brian Wasson, a federal prisoner confined in FCI
Fort Dix, moves for reconsideration of this Court’s order
dismissing his motion for a temporary restraining order (“TRO”).
Motion for Reconsideration, Docket Entry 4. He also filed a
motion captioned as a summary judgment motion. Docket Entry 7.
Petitioner was sentenced by the United States District
Court for the Central District of Illinois on June 29, 2010.
United States v. Starns, et al., No. 06-20055 (C.D. Ill. Jun.
He was represented on his direct appeal by Respondent
Tracy Hightower, a private practitioner located in Omaha,
Nebraska. Upon the conclusion of the direct appeal, Ms.
Hightower did not return what Petitioner describes as “60 banker
boxes of Federal Evidence” to him. TRO Motion, Docket Entry 1 at
According to Petitioner, he has sought to have these
boxes sent to him ever since the conclusion of his direct
appeal. Petitioner wrote to Ms. Hightower indicating he wanted
to have these boxes shipped to him and requested that she not do
anything with the boxes until he had time to seek assistance
from the Court. TRO Motion Exhibit A.
Ms. Hightower responded that if he did not make
arrangements to prepay the costs of shipping the boxes by March
21, 2016, she would begin shredding the documents. TRO Motion
Petitioner thereafter filed this motion for a TRO,
invoking this Court’s jurisdiction under 28 U.S.C. § 2241.
On March 24, 2016, this Court dismissed the motion for
lack of jurisdiction as the “petition” did not challenge his
confinement or sentence, but rather sought this Court’s
intervention in his private dispute with Ms. Hightower.
Memorandum Opinion, Docket Entry 2 ¶¶ 6-7.
Petitioner filed a motion for reconsideration arguing
that he “believed by invoking jurisdiction under 28 U.S.C. §
2241 the Court would understand he does consider his
incarceration [to be] in violation of the Constitution of the
United States of America or the laws and treaties of the United
States. . . . Petitioner aver[s] that he has never been granted
access to any of the evidence held, any Brady material and thus
the destruction of the withheld material would violate his
rights and prejudice his claims.” Motion for Reconsideration at
To prevail on a motion for reconsideration, the movant
(1) an intervening change in the controlling law; (2)
the availability of new evidence that was not
available when the court ... [rendered the judgment
in question]; or (3) the need to correct a clear error
of law or fact or to prevent manifest injustice.
U.S. ex rel. Shumann v. Astrazeneca Pharm. L.P., 769 F.3d 837,
848-49 (3d Cir. 2014) (citing Max's Seafood Café ex rel. Lou–Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
Even construing the original submission liberally, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Higgs v. Attorney
Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011), it cannot be
reasonably read as a § 2241 petition. Petitioner does not set
forth how the execution of his sentence violates the
Constitution or federal law or on what grounds he challenges his
conviction. The “petition” only discusses Ms. Hightower’s
alleged retention of his file documents, and the only relief
sought was a TRO against her, a Nebraska attorney, for conduct
having no connection to the District of New Jersey. See
generally TRO Motion.
Moreover, if the Court were to read the TRO motion as
a § 2241 petition, Ms. Hightower would have to be dismissed from
the action entirely because the only proper respondent in a §
2241 proceeding is Petitioner’s immediate custodian. See
Rumsfeld v. Padilla, 542 U.S. 426, 435-36 (2004).
Petitioner’s “summary judgment” motion continues to
ask the Court to intervene in his dispute with Ms. Hightower and
does not address his purported habeas claims.1 See generally
Summary Judgment Motion.
As Petitioner has not set forth a valid basis for
reconsideration of the Court’s Order, the motions are denied. To
the extent Petitioner wishes to pursue actual habeas proceedings
in this Court, he must file a new petition consistent with §
An appropriate order follows.
July 26, 2016
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
A letter attached to the summary judgment motion indicates Ms.
Hightower is willing to work with Petitioner in order to ensure
he receives his materials. Summary Judgment Motion Exhibit 1.
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