McAbee v. United State of America

Filing 3

ORDER and Notice of Potential Dismissal; response due from movant by September 15, 2017. Signed by US Magistrate Judge Veronica L. Duffy on 7/28/2017. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TERRANCE PAUL MCABEE,

4:17-CV-04090-KES

Movant,
ORDER AND
NOTICE OF POTENTIAL DISMISSAL

vs.
UNITED STATES OF AMERICA,
Respondent.

On June 27, 2017, Terrance Paul McAbee, a federal prisoner currently
incarcerated in the Federal Correctional Institution at Big Spring, Texas, filed
his “Notice of Constitutional Challenge and Motion to Intervene with an
Injunction.” Docket No. 1. Upon reviewing Mr. McAbee’s submissions it is
unclear whether Mr. McAbee wishes to challenge his conviction with a habeas
petition pursuant to 28 U.S.C. § 2255 or whether he intends to challenge the
conditions of his confinement and seek money damages pursuant to 42 U.S.C.
§ 1983. He challenges the constitutionality of various statutes he was
convicted under, which would be appropriate for a habeas action. Id.
However, he apparently is seeking money damages, a form of relief not
available in a habeas action.
A habeas action pursuant to § 2255 would be appropriately filed in this
district. However, a § 1983 action for the recovery of money damages would

have to be filed in the Northern District of Texas where Mr. McAbee is
incarcerated. Therefore, it is hereby
ORDERED that the clerk provide a blank 2255 form to Mr. McAbee. If
Mr. McAbee wishes to pursue habeas relief pursuant to 28 U.S.C. § 2255,
Mr. McAbee must complete and return the enclosed § 2255 form no later than
September 15, 2017. It is further
ORDERED that if Mr. McAbee instead wishes to pursue money damages
pursuant to 42 U.S.C. § 1983, he must so notify the court. Finally, it is hereby
ORDERED that if Mr. McAbee does not respond by September 15,
2017, by filing a completed § 2255 form or notifying the court he wishes
to pursue money damages, his case will be dismissed.
DATED this 28th day of July, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge

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