United States District Court, D. Kansas
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
matter is a petition for writ of habeas corpus filed under 28
U.S.C. § 2241. Petitioner is in federal custody at Core
Civic Leavenworth Detention Center in Leavenworth, Kansas
(“Core Civic”). The Court entered an Order (Doc.
6) setting a deadline of April 19, 2019, for Respondent to
show cause why the writ should not be granted, and a deadline
of May 20, 2019, for Petitioner to file a traverse. The Court
also set a deadline of April 8, 2019, for Respondents to
respond to Petitioner's motions at Doc. 4 and Doc. 5, and
a deadline of April 19, 2019, for Petitioner to file a reply.
Because Petitioner has filed additional motions and
correspondence, the Court enters this Order to clarify the
remaining issues for the parties to address in their
Motion for Subpoena (Doc. 4) and Motion for Release (Doc.
filed a Motion for Subpoena (Doc. 4), seeking to subpoena his
box of personal property, Missouri photo I.D. Card, birth
certificate, Social Security Card, and medical records.
Petitioner alleges that these items were removed from him
under the Marshal's Service orders, and are currently in
the possession of the South Central Correctional Center in
Licking, Missouri. Petitioner alleges that the items are
“immediately necessary” to prove the Social
Security Administration's illegal seizure of his assets,
to establish his legal right to an adversary hearing, and to
provide for the issuance of an order for release of his
assets for “hiring counsel of choice.” Petitioner
further asserts that surrender of his I.D. and medical
records is necessary to enable him to obtain medical
treatment and to perform banking and financial transactions
necessary for hiring counsel.
also filed a Motion for Release of Seized Assets for Hiring
Counsel of Choice Pursuant to Amendment VI U.S. Constitution
(Doc. 5), seeking release of the seized assets to enable him
to hire counsel to represent him in his habeas proceeding and
at his upcoming parole hearing. Petitioner also seeks the
release of “all his assets currently illegally seized
by . . . the Social Security Administration . . . totaling
$1, 788, 767.00.” Although the Court has set response
deadlines for these two motions, the Court notes that a claim
against the Social Security Administration is not properly
before this Court in this habeas action. If Petitioner
intends to pursue a claim against the Social Security
Administration, he needs to follow the Social Security
administrative procedures rather than proceeding in this
habeas action. See Head v. New Mexico Dep't of
Corr., No. 16-CV-00509-MCA-GJF, 2016 WL 9777224, at *1-2
(D. N.M. Sept. 27, 2016) (finding petitioner's amended
petition frivolous and stating that “Petitioner is not
in the custody of the Social Security Administration, the
Social Security Administration is not a named respondent, and
this Court lacks jurisdiction to grant habeas relief against
the Social Security Administration”); see also
Treece v. Louisiana, No. 2:08-cv-1486, 2008 WL 5480566,
at *1 (W.D. La. Dec. 5, 2008) (report and recommendation)
(“[i]n denying petitioner's request for relief, the
Fifth Circuit noted (as did the Eastern District) that
petitioner's challenge to the Social Security
Administration's decision to withhold his social security
benefits based on his incarceration was not cognizable in an
application for habeas corpus.”); Gray v. People of
Calif., No. CV 13-0742 JVS (SS), 2014 WL 1325312, at *6
(C.D. Cal. April 2, 2014) (noting petitioner's previous
petition was meritless and was dismissed where petitioner
failed to challenge his conviction or sentence and instead
requested review of the Social Security Administration's
alleged denial of benefits).
Emergency Motion for TRO/PI/Hearing (Doc. 7) and Motion for
Show Cause Order (Doc. 8)
filed “Plaintiff's Emergency Motion for a Temporary
Restraining Order and Preliminary Injunction and Request for
an Emergency Hearing” (Doc. 7). Petitioner seeks a
temporary restraining order (“TRO”) and
preliminary injunction: requiring the Respondents to order
the U.S. Marshal's Service and the U.S. Board of Parole
to retrieve his box of personal property pursuant to his
Motion for Subpoena at Doc. 4; declaring Respondents'
refusal to mail his petition as a violation of 18 U.S.C.
§ 1701; and prohibiting Respondents from destroying or
disposing of his property. Petitioner alleges that if
Respondents are not restrained from destroying his property,
he will be irreparably harmed. Petitioner also filed a Motion
for Order to Show Cause RE Preliminary Injunction (Doc. 8),
requesting entry of a show cause order directing Respondents
to appear for a hearing to show cause why a preliminary
injunction should not be issued.
obtain a preliminary injunction, the moving party must
demonstrate four things: (1) a likelihood of success on the
merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3)
that the balance of the equities tip in the movant's
favor; and (4) that the injunction is in the public interest.
Little v. Jones, 607 F.3d 1245, 1251 (10th Cir.
2010). “[A] showing of probable irreparable harm is the
single most important prerequisite for the issuance of a
preliminary injunction.” Dominion Video Satellite,
Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260
(10th Cir. 2004).
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). A preliminary
injunction is appropriate only when the movant's right to
relief is clear and unequivocal. Schrier v. Univ. of
Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). Moreover, a
federal court considering a motion for preliminary injunctive
relief affecting the conditions of a prisoner's
confinement must give “substantial weight to any
adverse impact on public safety” and on prison
operation. 18 U.S.C. § 3626(a)(2). Finally, a mandatory
preliminary injunction, such as the one sought by Petitioner,
which requires the non-moving party to take affirmative
action, is disfavored and therefore requires the moving party
to make a heightened showing of the four factors above.
Little, 607 F.3d at 1251.
preliminary injunctions and TRO's are drastic
remedies-“the exception rather than the rule-plaintiffs
must show that they are clearly and unequivocally entitled to
relief.” Adrian v. Westar Energy, Inc., No.
11-1265-KHV, 2011 WL 6026148, at *3 (D. Kan. 2011) (citations
omitted). The movant must also establish a relationship
between the injury claimed in their motion and the conduct
alleged in the complaint. Id.; see also Hicks v.
Jones, 332 Fed.Appx. 505, 507-08 (10th Cir. 2009)
(affirming denial of injunctive relief where movant sought
relief on “a matter lying wholly outside the issues in
[his] suit”). Petitioner's habeas petition relates
to the execution of his sentence. Petitioner's motion for
a TRO and preliminary injunction relates to the return of his
property and his access to the courts.
claims regarding his property are not properly brought in a
habeas action. The “purpose of a § 2241 habeas
proceeding is to allow a person in custody to attack the
legality of that custody . . . [b]ut a prisoner ‘who
challenges the conditions of confinement must do so through a
civil rights action.'” Davis v. Fox, 701
Fed.Appx. 715, 716 (10th Cir. 2017) (unpublished) (citations
omitted) (due process claim regarding impoundment of personal
property does not challenge the fact or duration of
confinement); see also Davis v. Heimgartner, No.
16-3063-SAC, 2016 WL 3855551, at n.9 (D. Kan. July 15, 2016)
(“Generally, a prisoner states no claim for habeas
corpus relief unless he alleges the deprivation of a liberty
interest, and he has no cause of action under 42 U.S.C.
§ 1983 for an unauthorized deprivation of property,
either intentional or negligent, by a state employee if a
meaningful state post deprivation remedy is available for the
loss.”) (citing Hudson v. Palmer, 468 U.S.
517, 533 (1984); see O'Neal v. Price, 531 F.3d
1146 (9th Cir. 2008)).
the U.S. District Court in Missouri has already ruled on
Petitioner's claims regarding his property. On December
6, 2018, Petitioner filed a pro se civil rights
action in the U.S. District Court for the Western District of
Missouri. See Bradin v. U.S. Marshals Service, No.
18-cv-03402-RK. In No. 18-3402-RK, Petitioner also sought the
return of his property. The court held that:
Plaintiff's allegations concerning the mishandling of his
property fail to state a federal claim. “An
unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedure
requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss
is available.” Hudson v. Palmer,468 U.S. 517,
533 (1984). The unauthorized destruction of property by
government officials does not violate due process because
Missouri provides an adequate postdeprivation remedy. See
Orebaugh v. Caspari, 910 F.2d 526, 527 (8th Cir. 1990)
(citing Hudson and Maples v. United Savings
& Loan Assoc., 686 S.W.2d 525, 527 (Mo. App. 1985)).
Under Missouri law, ...