Tashbook v. Fox

Filing 23

ORDER denying 22 Motion for Reconsideration, as more fully set out. Signed by Honorable David L. Russell on 6/6/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT TASHBOOK,
Petitioner,
v.
JOHN B. FOX, Warden,
Respondent.

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Case No. CIV-16-37-R

ORDER
Before the Court is Petitioner Robert Tashbook’s “Notice of Error in Docket 20
Order re: Jurisdiction to Refile as Bivens/§ 1331,” submitting that the Court made an
error in its May 5, 2016 Order dismissing Mr. Tashbook’s petition under 28 U.S.C. §
2241. The Court dismissed the Petition because Mr. Tashbook was not challenging the
fact or duration of his confinement as required under Section 2241. Doc. No. 20. Rather,
construing Mr. Tashbook’s pro se pleading liberally, the Court understood Mr.
Tashbook’s challenges to be to the place of his confinement. Id. The Court explained
such challenges are properly brought as an action pursuant to Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 (1971) or 28 U.S.C
§ 1331. Id.
In his Notice, which the Court construes as a motion to reconsider,1 Petitioner
submits that he does not believe he can bring a Bivens action and asks the Court to opine
whether jurisdiction would exist if he were to bring such a claim. Id. However, as a court

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The Court acknowledges that Mr. Tashbook indicates he may file a separate motion for reconsideration.

of limited jurisdiction, this Court may not render advisory opinions. United States v.
Burlington N. R. Co., 200 F.3d 679, 699 (10th Cir. 1999) (citations and quotations
omitted) (“[i]t is fundamental that federal courts do not render advisory opinions and that
they are limited to deciding issues in actual cases and controversies”).
In the event the Court decides it would not have jurisdiction over a Bivens action
(an issue on which, as explained above, the Court cannot opine), Petitioner asks the Court
to consider its May 5, 2016 Order “and grant all equitable relief.” However, Petitioner
has not provided any basis for the Court to reconsider its Order. The Court based its
decision on the fact that Petitioner challenged the place of his confinement, not its fact or
duration. Petitioner does not suggest this conclusion was in error and also acknowledges
that, to the extent the Court construed his original Petition as a request “not to be housed
at USP #2 Coleman and to be formally redesignated to another prison,” that request has
been granted and is now moot. Doc. No. 22, at 2.
Accordingly, Mr. Tashbook’s Notice (Doc. No. 22) is DENIED.
IT IS SO ORDERED this 6th day of June, 2016.

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