Kilgore v. Drew et al

Filing 17

REPORT AND RECOMMENDATIONS of Magistrate Judge Bristow Marchant that this Petition 1 and amended Petition 6 be dismissed without prejudice and without requiring the Respondent to file a return. Objections to R&R due by 10/30/2008. Signed by Magistrate Judge Bristow Marchant on 10/9/08. (rpol, )

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Cleveland Kilgore, # 09441-007, Petitioner, vs. Warden Darlene Drew; Federal Bureau of Prisons, Respondents. _______________________________________________

) C/A No. 9:08-3200-HFF-BM ) ) ) ) ) Report and Recommendation ) ) ) ) ) )

This is a habeas corpus action in which Petitioner seeks immediate release from prison. The pleading in the above-captioned case was originally filed as a motion in a now-closed Section 2241 habeas corpus action, Kilgore v. Drew, Civil Action No. 9:08-2299-HFF-BM. In Orders filed in Civil Action No. 9:08-2299-HFF-BM on September 18, 2008, the Honorable Henry F. Floyd, United States District Judge, dismissed that case without prejudice, but directed the Clerk of Court to assign a new civil action to the pleading because it raised new, unrelated matters. The new matters raised are threats of physical restraint, confiscation of legal documents, "extortion of currency," and forced labor. Under established local procedure in this judicial district, a careful review has been made of the pro se petition and the Form AO 240 (motion to proceed in forma pauperis) pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty

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Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979) (recognizing the district court's authority to conduct an initial screening of any pro se filing);1 Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). As the petitioner is a pro se litigant, his pleadings are accorded liberal construction. See Erickson v. Pardus, 75 U.S.L.W. 3643, 167 L.Ed.2d 1081, 127 S.Ct. 2197 (U.S., June 4, 2007)(per curiam); Hughes v. Rowe, 449 U.S. 5, 9-10 & n. 7 (1980)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972); Fine v. City of New York, 529 F.2d 70, 74 (2nd Cir. 1975). However, even when considered under this less stringent standard, the petition is subject to summary dismissal, as the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387 (4th Cir. 1990). The petitioner is obviously raising civil rights claims, which are cognizable under the holding in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for the violation of federal constitutional rights. see Wright v. Park, 5 F.3d 586, 589 n. 4 (1st Cir. 1993), which cites, inter alia, Carlson v. Green, 446

Boyce has been held by some authorities to have been abrogated in part, on other grounds, by Neitzke v. Williams, 490 U.S. 319 (1989)(insofar as Neitzke establishes that a complaint that fails to state a claim, under Federal Rule of Civil Procedure 12(b)(6), does not by definition merit sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) [formerly 28 U.S.C. § 1915(d)], as "frivolous").

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U.S. 14, 18 (1980) (restating Bivens rule). A Bivens claim is analogous to a claim under 42 U.S.C. § 1983: federal officials cannot be sued under 42 U.S.C. § 1983 because they do not act under color of state law. See Harlow v. Fitzgerald, 457 U.S. 800, 814-820 & n. 30 (1982). In other words, case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan; Bolin v. Story, 225 F.3d 1234, 1241-42 (11th Cir. 2000); and Campbell v. Civil Air Patrol, 131 F.Supp.2d 1303, 1310 n. 8 (M.D. Ala. 2001) (noting that, since courts have expanded the Bivens remedy, usually used for a Fourth Amendment violation, to allow direct action under First and Fifth Amendments, "the court shall refer interchangeably to cases" decided under both § 1983 and Bivens). The claims raised in the above-captioned case are not, however, proper § 2241 grounds for relief. Whether filed by a state prisoner or federal prisoner, a petition for writ of habeas corpus under 28 U.S.C. § 2241 has only been resorted to in limited situations -- such as actions challenging the administration of parole, Doganiere v. United States, 914 F.2d 165, 169-170 (9th Cir. 1990) (1991); computation of good time or jail time credits, McClain v. United States Bureau of Prisons, 9 F.3d 503, 504-505 (6th Cir. 1993); prison disciplinary actions, United States v. Harris, 12 F.3d 735, 736 (7th Cir. 1994); imprisonment allegedly beyond the expiration of a sentence, Atehortua v. Kindt, 951 F.2d 126, 129-130 (7th Cir. 1991); or unsuccessful attempts to overturn federal convictions, San-Miguel v. Dove, 291 F.3d 257 (4th Cir. 2002).2 Nevertheless, since the allegations raised by the petitioner in the above-captioned case are facially valid civil rights claims,

In his motion to amend (Entry No. 11), which has been granted in a separate order, the petitioner seeks enforcement of treaty rights based on his status as a sovereign citizen (Entry No. 11-2). However, even if the petitioner were a "real" foreign national, his claims are foreclosed by the recent decision of the Supreme Court in Medellin v. Texas, ___ U.S. ___, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). 3

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the civil rights claims in this § 2241 action can be properly raised in a Bivens action. Hence, in a separate order, the Clerk of Court has been directed to send Bivens forms to the petitioner.

Recommendation
Accordingly, it is recommended that this § 2241 petition be dismissed without prejudice and without requiring the respondents to file a return. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (federal district courts have duty to screen habeas corpus petitions and eliminate burden placed on respondents caused by ordering an unnecessary answer or return); Toney v. Gammon, 79 F.3d 693, 697 (8th Cir. 1996) ("However, a petition may be summarily dismissed if the record clearly indicates that the petitioner's claims are either barred from review or without merit."); Baker v. Marshall, 1995 U.S.Dist. LEXIS® 4614, *2-*3, 1995 WL 150451 (N.D. Cal., March 31, 1995) ("The District Court may enter an order for the summary dismissal of a habeas petition if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in this Court."); and the Anti-Terrorism and Effective Death Penalty Act of 1996. I also recommend that both the petitioner's motion for leave to file motion for bail (Entry No. 9) and motion for preliminary injunction (Entry No. 12) be denied. The petitioner's attention is directed to the very important notice on the next page.

October 9, 2008 Charleston, South Carolina

_____________________________ Bristow Marchant United States Magistrate Judge

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Notice of Right to File Objections to Report and Recommendation The petitioner is advised that he may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge need not conduct a de novo review, but instead must "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005). Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to: Larry W. Propes, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402 Failure to timely file specific written objections to this Report and Recommendation will result in the waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).

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