Opinion
CIV-21-1187-D
01-28-2022
PRISCILLA A. ELLIS, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff seeks transfer under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281 (2020), to the Dublin California Veterans Unit due to a COVID-19 outbreak at her current prison and given her “underlying conditions that could easily enhance and lead to a sudden death from COVID.” Doc. 1.
Although Plaintiff's complaint indicates she is incarcerated in Waseca, Minnesota, Doc. 1, at 1, the Court's own review indicates she is currently being held at the Federal Transfer Center in Oklahoma City, Oklahoma. Inmate Locator, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Jan. 28, 2022); see United States v. Muskett, 970 F.3d 1233, 1237 n.4 (10th Cir. 2020) (taking judicial notice of inmate's status according to the Bureau of Prison's Inmate Locator).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Because she challenges the conditions of her confinement, Plaintiff's action is properly construed under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (“[A] request by a federal prisoner for a change in the place of confinement is properly construed as a challenge to the conditions of confinement and, thus, must be brought pursuant to [ Bivens ].”) (alteration in original) (quoting United States v. Garcia, 470 F.3d 1001, 1003 (10th Cir. 2006)).
Chief Judge Timothy D. DeGiusti referred the matter to the undersigned for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. The undersigned recommends dismissal of the complaint in its entirety, as this Court lacks authority to provide the requested relief.
Adoption of this report and recommendation will render moot Plaintiff's in forma pauperis motion, Doc. 5.
I. Screening.
Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss any frivolous or malicious claim, any claim asking for monetary relief from a defendant who is immune from such relief, or any claim on which the court cannot grant relief. See id. § 1915A(b).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court may not, however, serve as Plaintiff's advocate, creating arguments on her behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Dismissal of Plaintiff's complaint.
The Bureau of Prisons (BOP) dictates where a prisoner is confined. 18 U.S.C. § 3621 (“The Bureau of Prisons shall designate the place of the prisoner's imprisonment . . . .”). This Court does not “have power to dictate placements to the [BOP].” United States v. Cosby, 180 Fed.Appx. 13 (10th Cir. 2006).
The Court therefore cannot order the BOP to transfer an inmate to a different facility even for medical reasons. See United States v. Pinson, 594 Fed.Appx. 517, 519 (10th Cir. 2014) (rejecting “argument that the district court had the authority to order the BOP to transfer him to a hospital for mental health treatment”).
And the CARES Act “did not alter the exclusivity of the BOP's discretion in determining where federal prisoners are housed.” Bobka v. Warden of Fed. Transfer Ctr., Bureau of Prisons, No. CIV-20-1156-SLP, 2021 WL 851896, at *1-2 (W.D. Okla. Jan. 19, 2021), adopted in part, rejected in part, 2021 WL 736903 (W.D. Okla. Feb. 25, 2021) (adopting report and recommendation except to the extent the magistrate judge recommended converting plaintiff's complaint to a civil rights action when plaintiff filed under 28 U.S.C. § 2241).
Although “[a] court generally may not modify a term of imprisonment once it has been imposed, ” it may order compassionate release in some circumstances, upon the inmate's motion, under 18 U.S.C. § 3582. United States v. Warren, 22 F.4th 917 (10th Cir. 2022). But “§ 3582(c)(1)(A), even as modified by the CARES Act, does not permit courts to specify where a prisoner shall serve her term.” United States v. Read-Forbes, 843 Fed.Appx. 131, 133 (10th Cir. 2021). Rather, “[a]ll a court can do is reduce the prisoner's sentence.” Id.
To obtain compassionate release, a defendant must file a motion in the court that sentenced them. United States v. Saldana, 807 Fed.Appx. 816, 818 (10th Cir. 2020) (“The First Step Act . . . amended § 3582(c)(1)(A) to authorize a defendant to move the sentencing court for a sentence reduction for ‘extraordinary and compelling reasons.'”). So this Court would also be unable to order Plaintiff's compassionate release.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal of Plaintiff's complaint without prejudice.
The undersigned advises Plaintiff of her right to file an objection to this report and recommendation with the Clerk of this Court on or before February 18, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.