Opinion
CIV-23-314-D
06-29-2023
ELGRET LORENZO BURDEX, Petitioner, v. OKLAHOMA COUNTY COMMISSIONERS, et al., Respondents.
REPORT & RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Mr. Burdex, formerly a pretrial detainee in Oklahoma County,has filed this action challenging the conditions of confinement and the criminal charges against him, but requesting “habe[a]s corpus relief.” Doc. 7, at 3-4.Chief United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). Doc. 3. The undersigned recommends dismissal of the Amended Petition in its entirety.
Mr. Burdex initiated this action while a pretrial detainee in Oklahoma County charged with one count of assault and battery upon a police officer and one count of resisting a police officer. State v. Burdex, Case No. CF-2022-5391, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2022-5391&cmid=4148353 (last visited June 27, 2023) (Burdex I); see also Doc. 7, at 2 (describing nature of charges). Since filing his Amended Petition, Mr. Burdex pleaded guilty to those charges and entered Oklahoma Veterans Treatment Court. Burdex I, Docket Entries dated May 5, 2023; see also Oklahoma Drug Court Act, OKLA. STAT. tit. 22 §§ 471-472. The state court noted that a “delayed sentencing agreement” had been signed and entered an order for Oklahoma Department of Corrections probation, as well as an order suspending probation payment requirements during Mr. Burdex's participation in treatment court. Id. Plaintiff's Veterans Treatment Court case is ongoing. See State v. Burdex, Case No. CF-2023-806, Docket Entry dated June 1, 2023 (noting Mr. Burdex's arraignment, appearing in custody), https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2023-806&cmid=4166335 (last visited June 27, 2023) (Burdex II). Plaintiff is not currently in jail. Burdex II, Docket Entry dated June 9, 2023 (order releasing Plaintiff on his own recognizance).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Adoption of this Report & Recommendation would render moot Petitioner's pending in forma pauperis motions. Docs. 5, 8.
I. Procedural background.
Mr. Burdex originally filed his complaint on the Court's “Pro Se Civil Rights Complaint Form,” challenging his conditions of confinement but seeking, among other relief, “habe[a]s corpus rel[ie]f” and an “honorable discharge.” Doc. 1, at 7-8. Advising Mr. Burdex that “[i]f [he] is attempting to proceed with a hybrid action, he cannot do so,” the Court provided Mr. Burdex with both a civil rights and a habeas corpus form and ordered Mr. Burdex to “choose which type of proceeding he is pursuing” and return the appropriate form. Doc. 6, at 2-3 (citing Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus . . .; requests for relief turning on circumstances of confinement may be presented in a § 1983 action.”)).
Mr. Burdex filed an Amended Petition on the Court's form for habeas corpus actions filed under 28 U.S.C. § 2241. Doc. 7. This is now the operative pleading.
II. Screening.
Under Rule 4 of the Rules Governing Section 2254 Cases (Rule 4), the Court must review habeas petitions and to summarily dismiss “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief ....” Rule 4; see also Garza v. Davis, 596 F.3d 1198, 1205 (10th Cir. 2010) (holding a federal court possesses “the discretion either to dismiss the § 2241 petition if it appear[s] that the petitioner [is] not entitled to relief or to order the respondent to file a response”).
The Court may apply the Rules Governing § 2254 Cases to habeas petitions arising under § 2241. See Rule 1(b); Whitmore v. Parker, 484 Fed.Appx. 227, 231 n.2 (10th Cir. 2012) (citing Boutwell v. Keating, 399 F.3d 1203, 1211 n.2 (10th Cir. 2005) as holding that: “The District Court . . . acted within its discretion by applying the Section 2254 Rules to this § 2241 petition.”).
This Court construes “pro se [petitioners'] pleadings liberally.” Johnson v. Reyna, 57 F.4th 769, 775 (10th Cir. 2023). If the Court “‘can reasonably read the pleadings to state a valid claim on which the [petitioner] could prevail,' [it] should do so.” Id. (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). The Court “will often excuse pro se [petitioners'] failure to cite proper legal authority, confusion of various legal theories, poor syntax and sentence construction, and unfamiliarity with the pleading requirements.” Id. (internal quotation marks omitted). The Court, may not, however, serve as Mr. Burdex's advocate by creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. Mr. Burdex's claims and requested relief.
Mr. Burdex first claims Respondents have “fail[ed] to provide [his] religious kosher diet” and “fail[ed] to prov[ide] medical treatment prescribed by [his doctor].” Doc. 7, at 3. He alleges he has “been in jail over 60 days and [hasn't] received meds from OKC VA doctors for COPD and hep[a]titis C which are terminal illnesses.” Id. at 4. He says he “had a debilitating stroke” in April before receiving his “daily meds for hyperten[sion].” Id. at 4-5. He also alleges “bed bugs” and “cruel and unusual punishment” and asserts the “right to a speedy trial.” Id. at 3. He seeks relief in the form of “habe[a]s corpus relief on ankle monitor,” as well as a “verbal reprimand,” a “speedy trial by jury,” and his “prescribed meds.” Id. at 4. He names as Respondents to his first claim the “Oklahoma County Commissioners,” “Turn Key Medical,” “Major Garner,” and “Dr. Winchester.” Id. at 3.
Mr. Burdex next claims he is subject to “bogus charges by bias[ed] officers” and “prosecutorial misconduct.” Id. He asserts that “the elements of [the] charges can't be met by DA.” Id. at 4. He also asserts violations of his rights under the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d-6, alleging “officers listen[ed] to [him] tell medical nurse [his] problems.” Id. at 5. He again seeks relief in the form of “habe[a]s corpus relief,” as well as a court order directing the “jail to treat [his] hep[a]titis C and COPD” and to “give [him his] Ensure prescription.” Id. He names as Respondents Oklahoma County District Attorney Vicki Zemp Behenna and OU Police Officers. Id. at 4.
IV. Discussion.
A. The Court should deny Mr. Burdex's claims related to the conditions of his confinement because he requests relief not available in a habeas action.
“Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § [2241], and a complaint under the Civil Rights Act of 1871, 42 U.S.C. § 1983.” Muhammad, 540 U.S. at 750 (internal citations omitted). “The fundamental purpose of a § 2241 habeas proceeding is to allow a person in custody to attack the legality of that custody, and the ‘traditional function of the writ is to secure release from illegal custody.'” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (quoting McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997)). In other words, habeas corpus review is available for those “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). By contrast, “requests for relief turning on circumstances of confinement may be presented in a § 1983 action.” Muhammad, 540 U.S. at 750.
Although the Tenth Circuit has “previously permitted prisoners to lodge both § 2241 claims and § 1983 claims in the same filing,” Whitmore, 484 Fed.Appx. at 240 (collecting cases), Mr. Burdex's claims are not so easily identifiable as either habeas or civil rights claims.
To assert a civil rights claim under § 1983 “in the same filing with his habeas claims,” an inmate must “compl[y] with the applicable procedural requirements (including those in the Prison Litigation Reform Act).” Whitmore, 484 Fed.Appx. at 240.
In his first claim, Mr. Burdex challenges the conditions of his confinement but seeks relief in the form of “habe[a]s corpus relief on ankle monitor,” as well as a “verbal reprimand,” “speedy trial by jury,” and his “prescribed meds.” Doc. 7, at 4. In his second claim, Mr. Burdex asserts a HIPAA violation by unnamed officers, again seeking habeas relief and a court order directing the “jail to treat [his] hep[a]titis C and COPD” and to “give [him his] Ensure prescription.” Id. at 4-5.
Because Mr. Burdex is “making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody,” the “proper remedy” is a § 1983 action, and habeas corpus relief is unavailable. Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973). And if Mr. Burdex “instead . . . seeks relief pursuant to 42 U.S.C. § 1983 for violations of his civil rights, his claims are not cognizable in a habeas corpus action.” Campbell v. Bear, No. CIV-16-530-R, 2016 WL 3556959, at *4 (W.D. Okla. May 31, 2016), adopted, 2016 WL 3566258 (W.D. Okla. June 24, 2016).
Because Mr. Burdex cannot obtain habeas relief for his conditions of confinement claim and his request for civil rights relief is not cognizable in a habeas action, the undersigned recommends the Court deny Mr. Burdex's first claim.
B. The Court should deny Mr. Burdex's “bogus charges” and “prosecutorial misconduct” claim because he has not exhausted his state-court remedies.
In his second claim, Mr. Burdex claims he is subject to “bogus charges by bias[ed] officers” and “prosecutorial misconduct,” again seeking habeas corpus relief. Doc. 7, at 4-5. Liberally construing this as a claim that he was unconstitutionally or illegally being held pretrial, see 28 U.S.C. § 2241, the undersigned recommends dismissal of this claim because he has not exhausted his state-court remedies.
Because non-exhaustion is plain from the face of the petition, the undersigned concludes it is proper to raise the exhaustion issue sua sponte. See Allen v. Zavaras, 568 F.3d 1197, 1202 (10th Cir. 2009) (upholding district court's sua sponte dismissal of petition for habeas relief for failure to exhaust state court remedies where petitioner's failure to exhaust “was clear from the face of his petition”). Petitioner may present his position by objecting to this report and recommendation. See id. at 1203 (noting that in allowing petitioner “an opportunity to respond to a problem obvious from the face of his pleadings,” the district court “abided the Supreme Court's instruction that ‘before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions'” (quoting Day v. McDonough, 547 U.S. 198, 210 (2006))).
“The exhaustion of available administrative remedies is a prerequisite for § 2241 habeas relief . . . .” Garza, 596 F.3d at 1203. A narrow exception applies only “if a petitioner can demonstrate that exhaustion is futile.” Id. Likewise, “[a] state prisoner generally may not raise a claim for federal habeas corpus relief unless he has exhausted the remedies available in the courts of the State.” Farris v. Allbaugh, 698 Fed.Appx. 950, 957 (10th Cir. 2017) (quoting Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011)). The Amended Petition indicates that Petitioner has neither appealed, nor filed a grievance, nor sought an administrative remedy related to the arguments he raises in his Amended Petition. See Doc. 7, at 2.
The undersigned therefore recommends the Court dismiss this claim based on Mr. Burdex's failure to exhaust his state-court remedies.
V. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal of the Amended Petition in its entirety.
The undersigned advises Mr. Burdex of his right to file an objection to this report and recommendation with the Clerk of this Court on or before July 20, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Mr. Burdex 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.