Opinion
No. 3:02-CV-1505-P.
February 7, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the United States Magistrate Judge are as follows:
I. BACKGROUND
A. Parties : Petitioner Simmon Bin Khalid, an inmate currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, filed this action as a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241. Respondent is Douglas Dretke, Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
Petitioner was convicted under the name of Theodore Roosevelt Simmons. ( See State Habeas R. at 1, 19-20.)
Petitioner specifically invokes 28 U.S.C. § 2241 as the jurisdictional basis for this action. Although he also cites and refers to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., enacted September 22, 2000, he does so in an effort to have § 2241 provide relief consistent with RLUIPA. The Court will discuss the nature of the action in more detail in a later section of these findings. For now it suffices to state that the filings of petitioner clearly show that he intends to pursue this action as a writ of habeas corpus.
B. Procedural History : On October 29, 1992, petitioner pled guilty to aggravated robbery, and the trial court sentenced him to a twenty-year term of imprisonment. (State Habeas R. at 20.) Petitioner filed a state application for habeas corpus relief challenging his conviction, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. See Ex parte Simmons, No. 32,514-01 (Tex.Crim.App. Nov. 27, 1996) (not designated for publication).
On June 17, 2002, prison authorities disciplined petitioner. ( See Pet. for Writ of Habeas Corpus (Pet.) ¶ 18.) On July 16, 2002, the Court received the instant habeas corpus petition. ( Id. at 1.) Petitioner therein seeks the following relief from this action: (1) release on "home arrest" or "parole in absentia"; (2) exemption from "mandatory DNA law"; (3) "treat this case" as a § 2241 petition; (4) reasonable attorney fees and compensatory and punitive damages; (5) restoration of lost or cancelled sentence reductions; (6) grant name change; (7) declaration that respondent violated petitioner's constitutional rights; (8) release from imprisonment once he has exceeded 18% of his primary sentence; (9) provide a "reservation" in Gatesville, Texas, for Muslims pending service of 18% of his sentence; (10) "treat this 2241" as equally protective as 42 U.S.C. § 2000cc-5(e), (g), and (h) at granting relief; (11) exemption from grooming rules; and (12) provide "hair relaxers" for inmates. ( Id. at 9a-9c.)
On August 12, 2002, the Court granted petitioner's request to proceed in forma pauperis in this habeas action, and sent petitioner a Magistrate Judge's Questionnaire (MJQ) to determine precisely what petitioner was challenging in this action. On September 4, 2002, the Court received petitioner's answers to the MJQ wherein petitioner specifically denies that he is challenging the disciplinary proceeding of June 17, 2002, in this action. ( See Answer to Question 1 of MJQ.) He further indicates that he is not challenging his state conviction. ( See Answer to Question 2 of MJQ.) He states that he is challenging a state law that requires the prison to punish prisoners who refuse to provide a blood sample for DNA purposes. ( See Answer to Question 1 of MJQ.) He continues to specifically invoke 28 U.S.C. § 2241 as the basis for this action. ( Id.)
On September 24, 2002, the Court directed respondent to file an answer to the petition. ( See Order to Show Cause.) On September 30, 2002, the Court received correspondence wherein petitioner again affirmatively expressed his desire to proceed with this action under § 2241. On November 19, 2002, the Court received a "Motion to Correct Relief" which the Court granted on November 21, 2002. Petitioner therein asserts an additional request for relief — that all "shut down public schools in Texas be remodeled and made into half way homes and vocational trade centers to train" the Muslims who are "completing their 18% of sentence." ( See Mot. to Correct Relief.)
On November 21, 2002, respondent filed an answer in which he seeks dismissal of this action for lack of jurisdiction because petitioner has stated no claim cognizable under 28 U.S.C. § 2241. ( See Answer at 4.) On December 16, 2002, respondent filed a supplemental answer to respond to the additional requested relief set forth in petitioner's motion to correct judgment. ( See Supp. Answer.) He again seeks dismissal of this action for lack of jurisdiction because petitioner has stated no claim cognizable under 28 U.S.C. § 2241. ( Id. at 2-3.)
On December 18, 2002, petitioner responded to the answers of respondent. ( See Petitioner's Resp., hereinafter referred to as Reply.) He therein states: "The Judge can readily note that petitioner is challenging legislation DNA law under 2241 . . . on purely religious grounds of [§] 2000cc et seq., and 2000cc-3(h), which says this 2241 must be equally protective as [§] 2000cc et seq." ( Id. at 1.) He later states that "respondent simply seeks to circumvent this 2241 in conformity with [§] 2000cc." ( Id. at 4.) He argues that "religious civil suits which if successful would have the effect of releasing a prisoner is in effect a habeas corpus proceeding." ( Id.) He further argues that the Court should bar respondent from relying on any procedural defenses available under 28 U.S.C. § 2254. ( Id. at 6-8.) He states that he does not "know how to exhaust" his claims. ( Id. at 7.) He maintains that his claims are cognizable under § "2241 in conformity with [§] 2000cc." ( Id. at 11.)
On December 9, 2004, the Court mailed petitioner a Second MJQ to further flesh out the nature of this action. It therein directed petitioner to answer the questions contained in that document and return the answers within twenty days. It warned petitioner, furthermore, that "[f]ailure to file answers to the Questions may result in the dismissal of the action for failure to prosecute." To date, petitioner has filed nothing else in this case subsequent to the Second MJQ.
C. Substantive Issues : Petitioner argues that (1) he is entitled to release to a Muslim reservation under the Quran (also spelled Koran) and (2) requiring him to submit to DNA blood testing and (3) shaving his facial hair violates his religious beliefs.
Although petitioner was disciplined by prison authorities on June 17, 2002, ( see Pet. ¶ 18), he does not challenge that disciplinary proceeding in this action, ( see Answer to Question 1 of MJQ).
II. NATURE OF ACTION
Petitioner filed this action as a petition for writ of habeas corpus on a standard form used for actions under 28 U.S.C. § 2254. He deleted the reference to § 2254, however, and inserted § 2241 as the jurisdictional basis for this action. Petitioner interprets 42 U.S.C. § 2000cc-3(h) of the Religious Land Use and Institutionalized Persons Act (RLUIPA) as mandating that an action pursuant to § 2241 be equally protective of his religious rights, and he thus indicates that he files the instant action under § 2241 "in conformity with § 2000cc."Petitioner misinterprets § 2000cc-3(h). The provision provides that RLUIPA does not "preempt State law, or repeal Federal law, that is equally as protective of religious exercise as, or more protective of religious exercise than, [RLUIPA]." The provision does not mandate that relief under RLUIPA be available under § 2241. To obtain relief under RLUIPA a prisoner must commence a non-habeas, civil action that would be subject to the Prison Litigation Reform Act (PLRA). See 42 U.S.C. § 2000cc-2(a) (providing for a civil cause of action) and (e) (indicating that RLUIPA does not "amend or repeal" the PLRA). Petitioner has taken great pains to fit his cause of action under § 2241. The Court thus granted him leave to proceed in forma pauperis and ordered respondent to file an answer to the petition without regard to the PLRA. Although this action has elements of a civil action under RLUIPA, the Court considers it as a habeas action consistent with petitioner's intent.
Were the Court to consider this action as arising under RLUIPA, petitioner would be subject to various requirements of the PLRA. He would have to "pay the full amount of [the] filing fee" regardless of in forma pauperis status, see 28 U.S.C. § 1915(b)(2), and if he has accumulated three "strikes" by filing three prior frivolous or malicious civil actions, he would have to pre-pay the filing fee before proceeding with this civil action, see id. § 1915(g). In addition, the PLRA enacted 42 U.S.C. § 1997e(a) which requires prisoners to exhaust all available administrative remedies before bringing suit under § 1983 or other federal law (such as RLUIPA) with respect to prison conditions. See DeHart v. Horn, 390 F.3d 262, 272-73 (3d Cir. 2004). Because petitioner has made no allegation that he has exhausted the prison administrative remedies available to him in the Texas prison system, it appears that the exhaustion provision of the PLRA would cause the Court to dismiss this action, if the Court were to construe it as a non-habeas civil action. The Court should thus decline to consider this action as a non-habeas action.
III. INVOLUNTARY DISMISSAL
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss an action sua sponte for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (§ 1983 prisoner action). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Petitioner has failed to comply with the order of the Court that he file his answers within twenty days of the Questionnaire dated December 9, 2004. Such failure exhibits a lack of present intent to prosecute this action. Accordingly, the Court should dismiss this action pursuant to Rule 41(b).Notwithstanding Rule 41(b), dismissal of this habeas action is also warranted because petitioner raises no meritorious habeas claim. To state a claim cognizable on habeas review, petitioner must challenge the fact or duration of his confinement. See Cook v. Texas Dep't of Crim. Justice Transitional Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994). Petitioner's claim that he would be entitled to release upon completion of 18% of his sentence would merely enhance his eligibility for accelerated release and, thus, only has an indirect impact on the determination of whether he would eventually be released to parole. See id.; Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997). Such claim is not appropriately raised in a habeas corpus action. Carson, 112 F.3d at 820-21. In addition, to the extent petitioner is arguing that he is automatically entitled to accelerated release under his proposed 18% rule, he is not entitled to habeas relief. Petitioner has no protected interest in release to parole, and he is not eligible for mandatory supervision. Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997); Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995); Gaona v. Dretke, No. 2:02-CV-0027, 2004 WL 1175490, at *2 n. 4 (N.D. Tex. May 27, 2004), adopted by 2004 WL 1515572 (N.D. Tex. July 6, 2004).
Because dismissal of this habeas action is warranted for petitioner's failure to file answers to the Second MJQ and his failure to raise a meritorious habeas claim, the Court should dismiss this habeas action with prejudice to its refiling.