Dodson v. Phillips

Filing 61

REPORT AND RECOMMENDATION: It is therefore respectfully recommended that the Motion for Immediate Medical Treatment and Neurological Examination 54 be DENIED without prejudice to renewal of the claim in a § 1983 case. Signed by Magistrate Judge Michael R. Merz on 12/22/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BRIAN JERMAINE DODSON,
Petitioner,

:

- vs -

Case No. 1:16-cv-060
District Judge Crenshaw
Magistrate Judge Merz

CHERRY LINDAMOOD, Warden,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner’s
Emergency Motion for Immediate Medical Treatment and Neurological Examination (ECF No.
54). The Warden opposes the Motion (ECF No. 55) and Petitioner has filed a Reply in Support
(ECF No. 56).
The Motion seeks relief in the nature of a preliminary injunction and is thus a dispositive
motion on which the Magistrate Judge must make a recommended disposition rather than a
decision. 28 U.S.C. § 636(b). At the time the Motion was filed, this Magistrate Judge was
presiding, on a consent basis, over preliminary injunction proceedings related to the impending
execution of Alva Campbell by Ohio which was scheduled for November 15, 2017, and thus was
unable to decide the Motion as promptly as would have been desirable.
In Preiser v. Rodriquez, 411 U.S. 475 (1973), the Supreme Court held a district court
cannot grant release from confinement in a § 1983 action because to do so would frustrate the

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habeas exhaustion requirements. Then in Nelson v. Campbell, 541 U.S. 637 (2004), the Court
held that a challenge to a method of execution can be brought in a § 1983 because it essentially
challenges a method of carrying out a criminal judgment.

The Court reaffirmed § 1983

cognizability of these claims in Hill v. McDonough, 547 U.S. 573 (200). In Glossip v. Gross,
135 S. Ct. 2726 (2015), the Court held that method of execution claims not only can be but must
be brought in a § 1983 case. Then in In re Campbell, 874 F.3d 454 (6th Cir. 2017), cert. den. sub
nom. Campbell v. Jenkins, 199 L. Ed. 2d 350 (2017), the Sixth Circuit brightened the line
distinguishing § 1983 from § 2254 cases and held that Glossip means what it says: method of
execution claims must be brought in § 1983 and cannot be brought in habeas.
Campbell was decided October 25, 2017, and the Supreme Court denied certiorari
November 14, 2017, so the Campbell decision is final and, because published, precedential.1 It
relies on the fundamental distinction between § 1983 procedure and habeas procedure adopted
by the Supreme Court in Preiser, Nelson, and Glossip.
That distinction governs the decision of the instant Motion.

The Motion raises a

conditions of confinement constitutional claim which must be brought in a § 1983 case; relief on
that claim cannot be granted “ancillary” to a habeas corpus claim. The Magistrate Judge in no
way intends to denigrate the seriousness of Mr. Dodson’s condition as represented in the Motion
nor to suggest it is not addressable by this Court2. But it is not within our habeas corpus
jurisdiction.

1

The prompt decision from the Sixth Circuit and the prompt denial of certiorari probably happened because of the
imminence of Campbell’s scheduled execution. As has been widely reported, Campbell’s execution was halted in
process by the Director of the Ohio Department of Rehabilitation and Corrections.
2
I pretermit any venue questions.

2

It is therefore respectfully recommended that the Motion be DENIED without prejudice
to renewal of the claim in a § 1983 case.

December 22, 2017.
s/ Michael R. Merz
United States Magistrate Judge
(by assignment)

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