Opinion
CIV-21-1067-D
01-05-2022
DAVID BRIAN MORGAN, Plaintiff, v. THE UNITED STATES, et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a convicted prisoner appearing pro se, brings this civil rights action under 42 U.S.C. 1983 and Bivens v. Six Unknown named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 1). And although Mr. Morgan does not cite 28 U.S.C. 2254 as a jurisdictional basis for the allegations in the Complaint, in part Mr. Morgan attacks the validity of his conviction and seeks relief available only in a petition for a writ of habeas corpus. See infra. Thus, the Court should construe the Complaint as a hybrid pleading-containing both habeas and civil rights claims. Also pending is Plaintiff's “Motion to Transfer Venue Back to the U.S. District Court for the District of Columbia and Motion to Add Defendants.” (ECF No. 15).
Bivens v Six Unknown named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) provides a means by which a prisoner may bring an action against federal officials to challenge the conditions of his or her confinement. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997).
United States District Judge Timothy D. DeGiusti has referred the case to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). An initial review of has been conducted pursuant to 28 U.S.C. 1915A and Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254. To the extent Plaintiff seeks relief under 42 U.S.C. 1983, the Complaint should be DISMISSED without prejudice for failure to state a claim upon which relief may be granted. To the extent that Plaintiff seeks habeas relief, it is recommended that the action be DISMISSED based on lack of jurisdiction. Additionally, the Court should DENY Plaintiff's Motion to Transfer/Add Defendants.
I. PLAINTIFF'S ALLEGATIONS
Plaintiff is a convicted state prisoner currently confined at the Joseph Harp Correctional Center. See ECF No. 1. Mr. Morgan has filed this lawsuit, on behalf of himself and “25, 000 State of Oklahoma Inmates, ” alleging: (1) unlawful conditions of confinement, (2) cruel and unusual punishment, (3) a lack of jurisdiction in the trial court, (4) “negligence for false arrest, ” (5) mental anguish, (6) lack of proper medical care, (7) lack of proper diet, (8) a violation of his “14th, 8th, 5th, 6th, 1st, rights, ” (9) a violation of Equal Protection, and (10) a violation of the Federal Tort Claims Act (FTCA). (ECF No. 1:3, 5, 1-1, 1-2).
Although disjointed, it appears as though Plaintiff's allegations are three-fold. First, Plaintiff complains that under McGirt v. Oklahoma, 140 S.Ct. 2454 (2020), the State of Oklahoma lacked jurisdiction to prosecute him and other Oklahoma inmates. (ECF No. 1-1, 1-2:2, 6, 10). Second, Plaintiff alleges that the Oklahoma Department of Corrections (DOC) has failed to comply with the injunctions ordered following Battle v. Anderson, 376 F.Supp. 402 (E.D. Okla. 1974), which related to racial discrimination and double-celling inmates. See ECF No. 1-2:3-10; Battle v. Anderson. Third, and as a result of the alleged non-compliance with the orders in Battle and the 2020 onset of the coronavirus pandemic, Plaintiff alleges that he has been subjected to various unconstitutional conditions of confinement, including overcrowding/double-celling which prevented social distancing and resulted in over 43 DOC inmate deaths due to the coronavirus; delay of proper medical care; lack of access to quality food; lack of access to make phone calls; and lack of access to proper hygiene. (ECF No. 1-2:3-10).
In the early 1970s, Oklahoma inmate Bobby Battle served as the class representative in an action claiming that the conditions in Oklahoma prisons were constitutionally inadequate. As a result, a federal district court issued a series of injunctions requiring the DOC to remedy the violations. See Battle v Anderson, 376 F.Supp. 402 (E.D. Okla. 1974); Battle v. Anderson, 447 F.Supp. 516 (E.D. Okla. 1977). One of these injunctions prohibited the DOC from any further racial discrimination and required that future cell assignments be made without regard to race. Battle v. Anderson, 376 F.Supp. at 428. A second injunction required a minimum square footage per inmate and prohibited placing more than one prisoner in each cell. Battle v. Anderson, 447 F.Supp. at 526.
Mr. Morgan has named five Defendants, all sued in both their individual and official capacities: (1) The United States of America, (2) United States Department of Justice (DOJ) attorney J. Mandlebaum, (3) the Federal Bureau of Prisons (BOP), (4) Oklahoma Governor Kevin Stitt, and (5) Oklahoma DOC Director Scott Crow, (ECF No. 1:1-3). As relief, Plaintiff seeks: (1) monetary damages, (2) dismissal of “all charges, ” (3) immunity from further prosecution, and (4) release of himself from prison, along with “all State of Oklahoma prisoners.” (ECF No. 1:5 &1-1).
II. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee. 28 U.S.C. 1915A(a). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. 1915A(b).
In conducting this review, the Court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
Similarly, Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254, requires prompt examination of a habeas petition and requires dismissal if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”
III. DISMISSAL OF HABEAS CLAIM
On March 30, 2011, an Oklahoma County District Court convicted Petitioner on thirteen counts, including rape, molestation, kidnapping, and weapons possession. See Oklahoma State Courts Network, State v. Morgan, Case No. CF-2010-7695 (Okla. Co. Dist. Ct.). In this Court, Mr. Morgan has filed a litany of pleadings challenging this conviction. In Case No. CIV-19-482-R, the Court outlined Mr. Morgan's history thus:
Petitioner has persistently challenged th[e] [2011] conviction, under many guises, in this Court. For example, in 2014, Petitioner filed his first 2254 petition, which the Court dismissed as untimely. See Morgan v. Addison, No. CIV-14-337-R, 2014 WL 2197995, at *1 (W.D. Okla. May 27, 2014) (unpublished district court order). The Tenth Circuit denied a certificate of appealability and dismissed the appeal. See Morgan v. Addison, 574 Fed.Appx. 852 (10th Cir. 2014). Thereafter, Petitioner attempted to challenge his conviction through: (1) a “Writ of Coram Nobis” in July 2015; (2) an “All Writs Act” in November 2015; (3) a “Post Conviction Application, Extraordinary Writ” in June 2016; (4) a 28 U.S.C. 2255 action in August 2016; (5) a “Post-Conviction Motion for Modification under Liberty Violation” in January 2017; (6) another 2254 action in March 2017; and (7) a “Post Conviction Motion to File 2241(c) Prosecutorial Misconduct” in July 2017. See Morgan v. Bear, No. CIV-17-797-R, 2018 WL 2210449, at *1-2 (W.D. Okla. Apr. 13, 2018) (unpublished report and recommendation) (chronicling Petitioner's attempts to challenge his State court conviction in federal court), adopted, 2018 WL 2209526 (W.D. Okla. May 14, 2018) (unpublished district court order). The Court dismissed several of these actions as unauthorized second or successive habeas petitions. See id., *1-2, 4. The Tenth Circuit Court of Appeals has denied Petitioner's request to file a successive 2254 habeas petition on at least one occasion. See id., *2. Finally, and most recently, Petitioner challenged his conviction in an action invoking a “Writ of Qui Tam” and a “Writ of Ad Subjiciendum, ” in this Court on February 22, 2019. See Morgan v. United States, Case No. CIV-19-171-F, [Doc. No. 5]. A Report and Recommendation, recommending that
the action be construed as arising under 28 U.S.C. 2254 and then dismissed as second or successive, is pending. See id., [Doc. No. 7].Morgan v. Oklahoma, No. CIV-19-482-R, 2019 WL 3210600, at *2 (W.D. Okla. May 29, 2019). On July 16, 2019, Petitioner's habeas action was dismissed as second and successive. Morgan v. Oklahoma, No. CIV-19-482-R, 2019 WL 3208650 (W.D. Okla. July 16, 2019).
The final referenced Report and Recommendation was subsequently adopted on June 25, 2019. See ECF No. 12, Morgan v. United States, Case No. CIV-19-171-F (W.D. Okla. June 25, 2019). On October 2, 2019, the Tenth Circuit denied Petitioner's request for a certificate of appealability. Morgan v. State of Okla., 778 Fed.Appx. 610 (10th Cir. 2019).
Petitioner subsequently filed another action in this Court, once again challenging the underlying 2011 convictions. See ECF No. 1, Morgan v. Oklahoma, No. CIV-19-929-R (W.D. Okla. Oct. 8, 2019). The Court construed the action, in part, as arising under 28 U.S.C. 2254 and dismissed the habeas claims for lack of jurisdiction as a second or successive habeas petition filed without authorization from the Tenth Circuit Court of Appeals. Morgan v. Oklahoma, No. CIV-19-929-R, 2020 WL 412127, at *1-2 (W.D. Okla. Jan. 24, 2020). The Tenth Circuit denied a certificate of appealability on the habeas claims. Morgan v. Oklahoma, 814 Fed.Appx. 353, 355 (10th Cir. May 13, 2020).
On September 14, 2020, Petitioner filed yet another action in this Court seeking habeas corpus relief against the 2011 convictions. See ECF No. 1, Morgan v. United States, No. CV-20-932-F (W.D. Okla. Sept. 14, 2020). This Court dismissed the action as an unauthorized second and successive habeas action. Morgan v. Pettigrew, No. CIV-20-932-R, 2020 WL 7410103, at *2 (W.D. Okla. Dec. 17, 2020).
On October 20, 2021, Petitioner filed another habeas action, arguing that under McGirt v. State of Oklahoma, ___ U.S. ___, 140 S.Ct. 2452 (2020), the State lacked jurisdiction over his criminal proceedings because the underlying crimes occurred on Indian land. See ECF No. 1, Morgan v. United States, et al., Case No. CIV-21-1030-R (W.D. Okla. Oct. 20, 2021). This Court dismissed the action as an unauthorized second and successive habeas action. See ECF No. 6, Morgan v. United States, et al., Case No. CIV-21-1030-R (W.D. Okla. Dec. 6, 2021).
In the instant case, Mr. Morgan has filed a civil rights complaint, but within the pleading, he has also alleged that the trial court lacked jurisdiction to prosecute him under McGirt v. Sate of Oklahoma. See ECF No. 1-1:1, 6, 10. These allegations constitute "an attack on his conviction and sentence” and "must therefore be brought under 2254.” Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921, 924 (10th Cir. 2008). See Winrow v. Dowling, No. CIV-21-375-R, 2021 WL 4006004, at *1 (W.D. Okla. Sept. 2, 2021) (stating that an attack on a trial court's jurisdiction must be brought under 28 U.S.C. 2254).
Additionally, as a form of relief, Mr. Morgan has requested his immediate release. (ECF No. 1:5). In this circuit, a prisoner who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinement, must do so through an application for habeas corpus. McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997).
As previously explained, Petitioner has already sought habeas relief regarding his 2011 convictions, and most recently has specifically filed a habeas petition alleging the trial court lacked jurisdiction to prosecute him under McGirt. See supra. "The filing of a second or successive 2254 application is tightly constrained by the provisions of [the Antiterrorism and Effective Death Penalty Act].” Case v. Hatch, 731 F.3d 1015, 1026 (10th Cir. 2013). See Burton v. Stewart, 549 U.S. 147, 153 (2007) (concluding second-in-time habeas petition was “second or successive” under 28 U.S.C. 2244(b) because state prisoner “twice brought claims contesting the same custody imposed by the same judgment of a state court”). Notably, “[b]efore a second or successive [§ 2254] application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. 2244(b)(3)(A); accord Case, 731 F.3d at 1026. If the petitioner does not heed this statutory directive, the district court has no jurisdiction to consider his second or successive filing. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
Thus, 28 U.S.C. 2244(b) limits the circumstances in which a petitioner may proceed with a second or successive habeas corpus action under 2254. This statutory requirement for prior authorization is jurisdictional. See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (“The district court had no jurisdiction to decide [the petitioner's] successive § 2254 petition without authority from the court of appeals.”).
Petitioner has not requested authorization from the Tenth Circuit to file a second or successive petition with regard to his convictions. Without such authorization, this Court lacks jurisdiction over the habeas claim set forth in Mr. Morgan's Complaint. Because Petitioner did not obtain the requisite authorization, the Court should dismiss his unauthorized successive petition for lack of jurisdiction. See In re Cline, 531 F.3d at 1251 (“A district court does not have jurisdiction to address the merits of a second or successive . . . § 2254 claim until [the appropriate court of appeals] has granted the required authorization.”). Accordingly, the Court should dismiss the habeas portion of the Complaint based on lack of jurisdiction.
IV. DISMISSAL OF THE COMPLAINT
With the forgoing recommendation, what remains is Plaintiff's civil rights Complaint against: (1) the United States of America, (2) DOJ attorney J. Mandlebaum, (3) the BOP, (4) Governor Kevin Stitt, and (5) DOC Director Scott Crow.
A. Claim Against the United States of America
Plaintiff seeks relief against the United States under the FTCA “for negligently housing [him] in an unsafe non-federal facility . . . [and] negligence for false arrest.” (ECF No. 1:3); see also ECF No. 1-1. The Court should dismiss this claim.
The doctrine of sovereign immunity shields the United States, and all of its agencies, from suit, absent a Congressional waiver of immunity. Harrell v. U.S., 443 F.3d 1231, 1234 (10th Cir. 2006).
In the FTCA, Congress waived the United States' sovereign immunity for claims arising out of torts committed by federal employees acting within the scope of their employment. See 28 U.S.C. 1346(b)(1); Al v. Federal Bureau of Prisons, 128 S.Ct. 831, 835, 552 U.S. 214, 217-18 (2008). Congress also provided that suit under the FTCA is the exclusive remedy for claims brought for a “negligent or wrongful act or omission” of any Government employee acting within the scope of his employment. 28 U.S.C. 2679(b)(1).
Here, Mr. Morgan is a state prisoner, housed in a state facility who makes general allegations that he is living in an unsafe facility and that he was falsely arrested. See supra. But Plaintiff does not point to specific conduct committed by a particular federal employee which rendered his living conditions unsafe or his arrest false. Mr. Morgan refers to “wars” which broke out in Oklahoma prisons in 2019 and 2020, as well as “racial unrest.” (ECF No. 1-2:2, 3, 7). But these allegations are insufficient to state a claim under the FTCA as they are nothing more than conclusory statements and Plaintiff has failed to allege that a federal employee was acting in the scope of his employment resulting in harm to him. Thus, the Court should dismiss the FTCA claim against the United States for failure to state a claim. See supra, Twombly, see also Hernandez v. United States, 34 F.Supp.3d 1168, 1182 (D. Colo. Feb. 28, 2014) (dismissing Plaintiff's FTCA claim for “fail[ing] to provide any factual allegations in the complaint with regards to those claims[.]”).
In the Complaint, Plaintiff names one federal employee as a defendant-Department of Justice civil attorney “J. Mandlebaum.” (ECF No. 1:2). But Mr. Morgan makes no specific allegations against Mr. Mandlebaum nor in any way alleges that he was responsible for Plaintiff living in an unsafe facility or for Plaintiff's alleged false arrest. See ECF No. 1.
B. Claim Against DOJ Attorney J. Mandlebaum
Mr. Morgan has named DOJ attorney J. Mandlebaum as a Defendant to Plaintiff's civil rights claims. (ECF No. 1:2). Although Plaintiff has sued Mr. Mandlebaum in both his individual and official capacities, as a federal official, the only proper cause of action against Mr. Mandlebaum would be in his individual capacity, limited to the recovery of damages under Bivens. See supra, Bivens. The Court should dismiss any claim against Mr. Mandlebaum.
An essential element of a civil rights claim against an individual is that person's direct personal participation in the acts or inactions upon which the complaint is based. Kentucky v. Graham, 473 U.S. 159, 166 (1985). To establish personal participation, Mr. Morgan must allege that the federal official directly participated in the allegedly unconstitutional action or possessed supervisory responsibility over a policy which led to the violation of the inmate's constitutional rights. Pahls v. Thomas, 718 F.3d 1210, 1227 (10th Cir. 2013). Here, Mr. Morgan has failed to make any allegations that Mr. Mandlebaum personally participated in any of the alleged constitutional deficiencies outlined in the Complaint. See ECF No. 1. As a result, the Court should dismiss any claim against this Defendant. See Proenza v. Greco, 3 Fed.Appx. 742, 745, 2001 WL 37706, at *2 (10th Cir. 2001) (affirming dismissal of Bivens claim against federal officials based on a failure to sufficiently allege personal participation).
C. Claim Against the BOP
Mr. Morgan has filed a Bivens claim against the BOP and seeks monetary damages, release from prison, and immunity from future prosecution. (ECF No. 1:3). The Court should dismiss these claims.
“The concept of sovereign immunity means that the United States cannot be sued without its consent.” Merrill Lynch, Pierce, Fenner &Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). Federal courts lack subject matter jurisdiction over claims for damages against the United States where the United States has not waived its sovereign immunity. Iowa Tribe of Kan. and Neb v. Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010); Harrell v. United States, 443 F.3d 1231, 1234 (10th Cir. 2006). Only Congress can waive the sovereign immunity of the United States. See Governor of Kansas v. Kempthorne, 516 F.3d 833, 845 (10th Cir. 2008).
Congress has not waived sovereign immunity and extended the Bivens remedy for monetary damages to federal agencies. See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 71-72 (2001); FDIC v. Meyer, 510 U.S. 471, 486 (1994). Thus, Plaintiff cannot bring a Bivens action for damages against the BOP. See Myrie v. Federal Bureau of Prisons, No. CIV-10-875-C, 2011 WL 6210681, at *1 (W.D. Okla. Dec. 14, 2011) (noting that the BOP “enjoys sovereign immunity from Plaintiff's monetary claims.”). Consequently, the Court should dismiss Plaintiff's Bivens claims for damages against the BOP for lack of subject matter jurisdiction.
However, Congress has waived sovereign immunity for a federal agency such as BOP in actions seeking nonmonetary relief. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1238-1239 (10th Cir. 2005) (holding sovereign immunity does not bar inmate from suing BOP for injunctive relief under Eighth Amendment because BOP is agency within the meaning of the Administrative Procedures Act, 5 U.S.C. § 551(a) and § 702). Even so, Plaintiff's demand for injunctive relief which requests that the Court order injunctive relief in the form of his release from is not properly brought under Bivens. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (challenges to fact of an inmate's confinement are cognizable only by the remedy of habeas corpus). In addition, federal judges have no authority to grant total immunity from future prosecution. See Edgar v. MITE Corp., 457 U.S. 624, 649 (1982). As a result, the Court should dismiss the claims for injunctive relief against the BOP.
D. Claims against Governor Stitt and DOC Director Scott Crow
Plaintiff has sued Oklahoma Governor Stitt and DOC Director Scott Crow in their official and individual capacities, seeking monetary damages and injunctive relief. (ECF No. 1:2). The Court should dismiss these claims.
1. Claims for Monetary Damages
As to the official capacity claims for monetary damages against Defendants Stitt and Crow, the Eleventh Amendment to the U.S. Constitution bars requests for “[r]elief that in essence serves to compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law . . . even when the state official is the named defendant.” Papasan v. Allain, 478 U.S. 265, 278 (1986). Thus, the Court should dismiss the official capacity claims against Defendants Stitt and Crow for monetary damages as barred by the Eleventh Amendment. See E.R. by Cray v. Stitt, No. CIV-1137-SLP, 2019 WL 4546964, at *3 (W.D. Okla. Sept. 19, 2019). The Court should also dismiss Plaintiff's individual capacity claims for damages against Defendants Stitt and Crow for failure to state a claim.
When a defendant is sued in his or her individual capacity under § 1983, the plaintiff must establish specific elements as to each defendant. First, the plaintiff must establish the defendant's “personal involvement or participation” in the alleged violation of a federal right. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996); see also Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Second, the plaintiff must establish a causal connection between the acts of that particular defendant and the alleged violation of a federal right. See Iqbal, 556 U.S. at 676; Pahls, 718 F.3d at 1225-1228. Finally, the plaintiff must establish that the defendant acted with the state of mind required for the alleged underlying federal rights violation. See Daniels v. Williams, 474 U.S. 327, 330 (1986).
In the Complaint, Plaintiff alleges:
• “DOC Director lock down prisons statewide. . . Under Crow and . . . Governor Stitt we have spent over 90 days locked in our cells in 14 months and our lifes [sic] are in danger daily;”
• “Director Crow and Governor Stitt have essentially taken all 21 State of Oklahoma Prisons and turned them all into maximum security facilities with 24 hour lockdown, no showers for 4-5 days, no phone use, a violation of free of speech; and
• “DOC Director Scott Crow ha[s] violated Plaintiff's 14th, 8th, 5th, 6th, 1st rights repeatedly.”(ECF No. 1-2:3, 4, 10). The Court should conclude that these allegations are insufficient to state a claim for relief under 42 U.S.C. § 1983.
For example, Plaintiff alleges that the Defendants are responsible for locking down prisons statewide, but he fails to allege a causal connection between the acts of Defendant Stitt and/or Crow in locking down the facilities and the alleged violation of a federal right. In an attempt to bridge this gap, Plaintiff states that he is affected by the lockdowns because “the Board will . . . “take a handful of gang members (bad appels [sic]) and sprinkle them throughout the system. They will then clique together, being fighting, extortion, drug use, etc. and the tension on each yard will again rise until is once again pops.” (ECF No. 1-2:4). Plaintiff apparently believes that the lockdowns allegedly perpetrated by Defendants Stitt and Crow may result in future prison unrest. But Mr. Morgan has not alleged that the lockdowns have somehow affected his constitutional rights currently. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe CountyJustice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (explaining “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff believes the defendant violated.”). Furthermore, Plaintiff's reliance on violations of constitutional amendments, without additional explanation as to how those rights were violated, is insufficient. Twombly, 550 U.S. at 555. As a result, the Court should dismiss Plaintiff's individual capacity claims for damages against Defendants Stitt and Crow.
2. Claims for Injunctive Relief
The Court should also dismiss Plaintiff's claims for injunctive relief against Defendants Stitt and Crow seeking immunity from future prosecution and immediate release. As stated, a federal court has no power to order immunity from future prosecution. See supra. And, as stated, a prisoner who seeks immediate release or a shortened period of confinement, must do so through an application for habeas corpus. See supra, McIntosh v. U.S. Parole Comm'n, 115 F.3d at 812. But as discussed, the Court has no jurisdiction to adjudicate Mr. Morgan's claim seeking habeas relief. See supra. As a result, the Court should dismiss Plaintiff's claims for injunctive relief against Defendants Stitt and Crow.
V. PLAINTIFF'S REMAINING MOTION
Also pending is Plaintiff's “Motion to Transfer Venue Back to the U.S. District Court for the District of Columbia and Motion to Add Defendants.” (ECF No. 15). This motion concerns Plaintiff's jurisdictional challenge/habeas claim. See ECF No. 15. But because the Court has no jurisdiction over Mr. Morgan's habeas claim, the Court should likewise deny ECF No. 15.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should: (1) dismiss the Complaint in its entirety and (2) dismiss Plaintiff's Motion to Transfer/Add Defendants. Mr. Morgan is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by January 24, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.