BLOOM v. ORTIZ
MEMORANDUM AND ORDER denying 5 Motion Rule 15; The Clerk shall open a new civil action and file a copy of this Order and file Petitioner's Motion Rule 15 (Dkt. No. 5 ) as a complaint in the new action, etc. Signed by Judge Renee Marie Bumb on 11/17/2021. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID E. ORTIZ,
CIV. ACTION NO. 21-967(RMB)
MEMORANDUM AND ORDER
This matter comes before the Court upon Petitioner Ira Bloom’s
Rule 15 motion to amend (“Mot. Rule 15, Dkt. No. 5) his petition
application of Earned Time Credits under the First Step Act. For
the reasons discussed below, the Court will direct the Clerk of
Court to file Petitioner’s motion to amend as a new civil action,
and deny his motion to amend the present habeas petition.
28 U.S.C. § 2241(c)(3) provides that “The writ of habeas
corpus shall not extend to a prisoner unless-- [h]e is in custody
in violation of the Constitution or laws or treaties of the United
petitioner challenges the fact or length of confinement, as in
release upon application of his Earned Time Credits. See Leamer v.
Fauver, 288 F.3d 532, 542 (3d Cir. 2002) (describing difference
between § 2241 habeas claim and civil rights claim under § 1983
[or its federal counterpart, a Bivens claim.] In his motion to
amend, Petitioner seeks to add a claim against Corrections Officer
X. Ponce for verbal, mental and sexual harassment, which caused
Petitioner requests “I need my issues with C.O. X. Ponce resolved
immediately so I can resume attending Jewish Religious Services.”
(Mot. Rule 15, Dkt. No. 5.)
Pursuant to Leamer, “when the challenge is to a condition of
confinement such that a finding in plaintiff's favor would not
alter his sentence or undo his conviction, an action under § 1983
is appropriate.” 288 F.3d at 542. A finding that Ponce burdened
Plaintiff’s ability to practice his religion would not alter
Petitioner’s sentence or undo his conviction. Therefore, the Court
will deny Petitioner’s motion to amend his habeas petition, but
direct the Clerk to file Petitioner’s “Motion Rule 15” as a civil
complaint in a new action. Because Petitioner has not paid the
$402 filing fee or submitted an application to proceed in forma
administratively terminate the new action, subject to reopening
upon submission of the filing fee or an application under 28 U.S.C.
IT IS therefore on this 17th day of November 2021,
ORDERED that Petitioner’s Motion Rule 15 (Dkt. No. 5) is
DENIED; and it is further
ORDERED that the Clerk shall open a new civil action and file
a copy of this Order and file Petitioner’s Motion Rule 15 (Dkt.
administratively terminate the new action for failure to pay the
filing fee or submit an IFP application under 28 U.S.C. § 1915(a);
and it is further
ORDERED that the Clerk of the Court shall serve a copy of
Certification (Civil Rights)” upon Petitioner by regular U.S.
mail; and it is further
ORDERED that Petitioner may seek to reopen his new civil
action, within 30 days of the date of entry of this Order, by
paying the filing fee or submitting his properly completed IFP
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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