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Bradin v. Thomas

United States District Court, D. Kansas

April 2, 2019

JOHN BRADIN, Petitioner,
v.
LINDA THOMAS, Warden, and UNITED STATES BOARD of PROBATION & PAROLE, Respondents.

          ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         This 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 responses.

         I. Pending Motions

         A. Motion for Subpoena (Doc. 4) and Motion for Release (Doc. 5)

         Petitioner 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.

         Petitioner 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).

         B. Emergency Motion for TRO/PI/Hearing (Doc. 7) and Motion for Show Cause Order (Doc. 8)

         Petitioner 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.

         To 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).

         A 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.

         Because 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.

         Petitioner's 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)).

         Furthermore, 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, ...

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