Storm v. United States Parole Commission

Filing 4

ORDER signed by Judge Lynn Adelman on 8/29/14 denying 2 Motion for TRO. Further ordering that respondent provide an answer to the petition on or before September 29, 2014. (cc: all counsel, via USPS to petitioner) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DANIEL STORM
Petitioner,
v.

Case No. 14-C-1037

U.S. PAROLE COMMISSION,
Respondent.

ORDER
Pursuant to 28 U.S.C. § 2241, petitioner Daniel Storm petitions for a writ of habeas
corpus and an emergency restraining order preventing the Parole Commission from
implementing a modification of his conditions requiring 60 days of location monitoring. Federal
defendants may use § 2241 to challenge the execution of their sentences, so long as they first
exhaust administrative remedies.1 See Walker v. O’Brien, 216 F.3d 626, 629 (7th Cir. 2000);
Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997). Although petitioner avers that he has
exhausted his remedies, the materials attached to his petition indicate that the complained of
order was executed on August 20, 2014, and that he has 30 days to appeal. He filed the
instant action on August 25, 2014. The materials include an “appeal” petitioner filed with the
Commission on or about August 8, 2014, after the supervising probation officer proposed this
modification, but not a formal appeal filed after its actual imposition.
It is also unclear when this modification will actually go into effect. The materials
indicate that petitioner is to see his probation officer regarding the modification on September

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In an order issued today in Case No. 14-C-405, in which petitioner challenges his
continuation on parole, I indicate that it appears venue is appropriate in this district.

5, 2014. Finally, although petitioner avers that he did not receive sufficient notice and
opportunity to be heard, the materials indicate that on or about August 8, 2014, he filed a
lengthy submission with the Commission setting forth his opposition to the proposed
amendment. Accordingly, given the uncertainties regarding exhaustion and provision of predeprivation due process, I cannot find that the extraordinary remedy of ex parte emergency
relief is appropriate. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (noting that
preliminary injunctive relief is an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion); Fed. R. Civ.
P. 65(b)(1)(A) (indicating that in order to obtain a temporary restraining order without prior
notice to the adverse party the movant must satisfy an even higher standard, showing “that
immediate and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition”).
THEREFORE, IT IS ORDERED that petitioner’s emergency motion for a restraining
order (R. 2) is DENIED.
IT FURTHER IS ORDERED that respondent provide an answer to the petition on or
before September 29, 2014.
Dated at Milwaukee, Wisconsin, this 29th day of August, 2014.
/s Lynn Adelman
LYNN ADELMAN
District Judge

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