Opinion
Civil Action No. 04-D-2248 (MJW).
September 28, 2005
ORDER REJECTING RECOMMENDATION OF MAGISTRATE JUDGE
I. INTRODUCTION
This matter is before the Court on Plaintiff's Prisoner Complaint filed October 28, 2004 and his Amended Prisoner Complaint filed November 8, 2004. Defendants filed a Motion to Dismiss on January 10, 2005. This motion was referred to Magistrate Judge Watanabe pursuant to a general Order of Reference filed December 17, 2004.
On May 11, 2005, a Recommendation regarding Defendants Colorado State Board of Parole, and Sherri Stoneking's Motion to Dismiss Complaint (Docket No. 25); and Plaintiff's Amended Complaint (Docket No. 7) was filed. This Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), FED. R. CIV. P. 72(b). Magistrate Judge Watanabe recommends therein that the case be dismissed for lack of subject matter jurisdiction. Recommendation at 7.
More specifically, Magistrate Judge Watanabe finds that given the nature of the relief sought by Plaintiff, the Court should decline to consider the action as a civil rights action pursuant to 42 U.S.C. § 1983. Id. at 3. Instead, Plaintiff's "wrongful imprisonment" claim relating to an alleged parole violation and Plaintiff's challenge to the fact that he is being held beyond his statutory discharge date are more suited for an Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Id. In other words, the amended complaint should be construed as a direct challenge to the parole hearing and the fact he was not released. As such, the Recommendation finds that this case should have been brought as a habeas petition. Id. at 4.
Magistrate Judge Watanabe further notes that Plaintiff is apparently aware that a habeas petition is the proper vehicle for his claim, as he previously filed an Application for Writ of Habeas Corpus on August 10, 2004 (in 04-cv-1352-PSF-BNB) that essentially raises the same claims against the same Defendants. Id. at 5. Since Plaintiff should be seeking relief through an Application for Writ of Habeas Corpus, Magistrate Judge Watanabe found that it was unnecessary to address the merits of Defendants' arguments in their motion to dismiss. Id. at 6. Instead, he recommended that the case be dismissed for lack of subject matter jurisdiction. Id. at 7.
On May 23, 2005, Plaintiff filed a timely Objection. Plaintiff states therein that this case involves a different time period than at issue in the habeas case (July 18, 2004 through October 25, 2004), and that the two cases are separate. See Pl.'s Objection to Recommendation Regarding Docket # 25 and Docket # 7 at 1, filed May 23, 2005. Plaintiff also asserts that he believes the Court does have subject matter jurisdiction over this case since his rights were violated and he is not seeking release. Id. at 1-2. Instead, he is seeking a judgment for wrongful/forced imprisonment (he claims that he should have been released June 18, 2004 but was held until October 25, 2004) and for due process violations associated with same. Id. at 2. Plaintiff requests that the Court set a hearing and appoint counsel for him. Id. at 2-3.
On May 23, 2005, Plaintiff filed a response to Defendants' motion to dismiss. I note that Plaintiff's objections claim to have filed a response earlier that was not received by the Court.
On June 14, 2005, Plaintiff filed a pleading entitled "Motion to accept further support of objection to Courts Recommendation. . . ." To the extent that this motion seeks leave to supplement Plaintiff's earlier objections, that motion is granted. In that pleading, Plaintiff attaches a Recommendation in the habeas petition that was filed June 6, 2005 (after Magistrate Judge Watanabe issued his Recommendation in this case). Magistrate Judge Boland recommends therein that the habeas petition be dismissed as moot since Plaintiff had been released and was no longer in confinement. He further stated therein that an action under 42 U.S.C. § 1983 is the proper remedy for Plaintiff to pursue his challenge. That Recommendation was adopted and affirmed by Judge Phillip S. Figa in an Order filed July 8, 2005.
II. ANALYSIS
Plaintiff's objections necessitate a de novo determination as to those specified proposed findings or recommendations to which objection is made since the nature of the matter is dispositive. FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1). The Court's review of the history of this case shows that Plaintiff was told in this case through the Recommendation of Magistrate Judge Watanabe that he needed to file a habeas petition. However, he was told in his habeas case that habeas relief was not available to him and that he should pursue a civil rights action under 42 U.S.C. § 1983.
I agree with Magistrate Judge Boland's Recommendation in the habeas case that since Plaintiff has been released from prison and is no longer in confinement, a habeas petition is not available to him. See Recommendation filed June 6, 2005 in 04-cv-1352-PSF-BNB. Instead, since the complaint and amended complaint filed by Plaintiff in this case appear to have been filed after his release from prison, this civil rights action seems to be the proper mechanism for obtaining relief regarding his alleged wrongful imprisonment. The action is, however, subject to any valid legal challenges made by Defendants. Accordingly, I reject Magistrate Judge Watanabe's May 11, 2005 Recommendation, since I find that dismissal is not proper on the grounds articulated therein.
To the extent Plaintiff asks that this case be stayed pending a final order in his habeas case, that is moot since the habeas case was dismissed.
I also, however, deny without prejudice Defendants' motion to dismiss. I find that the Recommendations issued in this case and/or the habeas case may impact arguments to be made in a motion to dismiss, and that the better course is to deny the motion to dismiss without prejudice with leave to refile the motion within thirty (30) days.
Based upon the foregoing, it is
ORDERED that the Recommendation Regarding Defendants Colorado State Board of Parole, and Sherri Stoneking's Motion to Dismiss Complaint (Docket No. 25); and Plaintiff's Amended Complaint (Docket No. 7) filed May 11, 2005, is REJECTED. It is
FURTHER ORDERED that Defendants' Motion to Dismiss filed January 10, 2005, is DENIED WITHOUT PREJUDICE. It is
FURTHER ORDERED that Defendants may refile a motion to dismiss (or other dispositive motion) within thirty (30) days, on or before Friday, October 28, 2005