Opinion
23-3029-JWL
07-18-2023
AARON J. WHITMAN, Petitioner, v. Lt. Gen. MILFORD BEAGLE, JR., Commanding General, U.S. Army Combined Arms Center, Respondent.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE. \ This matter is a pro se petition for writ of habeas corpus under 28 U.S.C. § 2241 filed by a military prisoner in custody at the United States Disciplinary Barracks at Fort Leavenworth in Kansas. Petitioner alleges a violation of the First Amendment with respect to his religious practices at the prison. This matter is before the Court on Petitioner's Request to File APA Suit (Doc. 7).
On February 7, 2023, the Court entered an Order (Doc. 2) advising Petitioner that a petition under 28 U.S.C. § 2241 provides the remedy to challenge the execution of a sentence. See Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011). Thus, a petitioner may challenge the fact or duration of his confinement and may seek release or a shorter period of confinement. See Palma-Salazar v. Davis, 677 F.3d 1031, 1037 n.2 (10th Cir. 2012). However, claims challenging a prisoner's conditions of confinement do not arise under Section 2241. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997) (contrasting suits under Section 2241 and conditions of confinement claims). The Court directed Petitioner to advise the Court as to whether or not he intends to proceed in this matter as a civil rights case. The Court's Order provided that “[i]f so, he must file his complaint on court-approved forms.” (Doc. 2, at 2.)
Instead of filing a civil rights complaint on the court-approved forms provided to him, Petitioner filed a Request to File APA Suit, seeking permission to file an action against the Respondent/Defendant under the Administrative Procedure Act for alleged violations of Petitioner/Plaintiff's First Amendment rights. (Doc. 7, at 1.) Petitioner also lists three additional Plaintiffs. Although the additional Plaintiff's signed the request, they are not addressed in the body of the request and they have not filed motions for leave to proceed in forma pauperis.
Petitioner is given a final opportunity to file any complaint he wishes to pursue on the court-approved form. Petitioner should keep in mind that the Administrative Procedure Act (“APA”) authorizes the Court to examine final agency actions to ensure that they are not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). To adequately plead an APA claim, a plaintiff must: (i) identify a decision by a defendant that constitutes a “final agency action”; and (ii) allege facts showing that the action was arbitrary, capricious, or otherwise not in accordance with law. A “final agency action” is one that constitutes “ ‘a definitive statement [ ] of [the agency's] position' with ‘direct and immediate' consequences.” Assn. of Intl. Auto Mfrs. v. Commissioner, 208 F.3d 1, 5 (1st Cir. 2000) (citations omitted). To satisfy the statutory standing requirements of the APA, plaintiffs “must establish that defendants took ‘final agency action for which there is no other adequate remedy in court.' ” Colorado Farm Bureau Fed. v. United States Forest Serv., 220 F.3d 1171, 1173 (10th Cir.2000) (quoting 5 U.S.C. § 704). “Whether federal conduct constitutes final agency action within the meaning of the APA is a legal question.” Id. (citation omitted).
IT IS THEREFORE ORDERED BY THE COURT that Petitioner's Request to File APA Suit (Doc. 7) is denied without prejudice.
IT IS FURTHER ORDERED that Petitioner is granted until August 18, 2023, in which to submit any complaint he seeks to pursue on the court-approved form. Failure to comply by this deadline may result in dismissal of this action without further notice.
The Clerk is directed to send Petitioner § 1331 forms and instructions.
IT IS SO ORDERED.