Bateman et al v. U.S.P. Big Sandy, No. 7:2010cv00146 - Document 9 (E.D. Ky. 2011)

Court Description: MEMORANDUM OPINION & ORDER: (1) Clerk is directed to terminate "USP-Big Sandy" as Respondent to this action and to designate D. Berkebile, the Warden of USP-Big Sandy and Reed's custodian, as sole Respondent to this action. (2) The 28 U.S.C. § 2241 petitions filed by Courtney Bateman and RobertAndrew, R. 2 & 3 , are DENIED. (3) Judgment shall be entered contemporaneously with this Memorandum Opinion and Order in favor of Respondent. (4) Clerk is directed to send copy of this Order to Petitioner Courtney Bateman at USP-Hazelton. Signed by Judge Karen K. Caldwell on 6/6/2011.(RCB)cc: COR, BATEMAN, REED

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT PIKEVILLE COURTNEY BATEMAN, et al., Petitioners, v. USP- BIG SANDY, Respondent. | | | | | | | | | Civil Action No. 7:10-00146-KKC MEMORANDUM OPINION AND ORDER ***** ***** ***** ***** Petitioners Courtney Bateman and Robert Andrew Reed have filed have separate pro se submissions entitled as petitions for writ of habeas corpus under 28 U.S.C. § 2241. [R. 2 & 3]. For the reasons set forth below, both habeas petitions will be denied because neither Bateman nor Reed are entitled to relief under § 2241. DISCUSSION The Court screens the purported habeas petitions to determine if Bateman and Reed are entitled to relief under § 2241. See Rule 4, Rules Governing 28 U.S.C. § 2254 Cases; (applicable to § 2241 petitions under Rule 1(b)); see also 28 U.S.C. § 2243. A district court may summarily dismiss a § 2241 petition if it appears from its face that the petitioner is not entitled to relief. See 28 U.S.C. § 2243; Blevins v. Lamanna, 23 F. App x 216, 218 (6th Cir. 2001); Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970). In their petitions, Bateman and Reed seek an Order directing the United States Marshals Service ( USMS ) to transport them from USP-Big Sandy to the Federal Courthouse in Pikeville, Kentucky, so that they can file criminal Complaints and address the grand jury.1 When a federal prisoner challenges the execution of his sentence, i.e., the BOP s calculation of sentence credits or other issues affecting the length of his sentence, he may file a § 2241 petition filed in the district where he is incarcerated. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001)); see also Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999). However, Reed and Bateman are not challenging the execution of their sentences; they seek injunctive relief, i.e., an Order transporting them to a federal courthouse to file criminal complaints and speak to the grand jury. Bateman s purported § 2241 petition will be dismissed for two reasons. First, he failed to keep the Court apprised of his current address and failed to prosecute his claims.2 Second, Bateman s request to be transported to the Pikeville, Kentucky, federal courthouse is moot because he is no longer confined in USP-Big Sandy. Generally, an inmate s transfer to another prison moots his request for injunctive relief. Lyons v. Azam, 58 F. App x. 85, 87 (6th Cir. 2003); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); see also Jones v. Pancake, No. 06-188, 2007 WL 2407271, at *2 (W. D. Ky. August 20, 2007) 1 The person having day-to-day control over the facility in which a federal prisoner is being detained is generally considered the only proper respondent in a § 2241 proceeding. See 28 U.S.C. § 2242; Roman v. Ashcroft, 340 F.3d 314, 319 (6th Cir. 2004). As D. Berkebile is the W arden of USPBig Sandy and Reed s custodian, the Clerk of the Court will be directed to designate W arden Berkebile as the sole respondent to this action and to terminate USP-Big Sandy as the respondent. 2 Bateman was confined in USP-Big Sandy when he filed this proceeding, but the copy of the May 5, 2011, Deficiency Order mailed to him was returned as undeliverable. [R. 6]. By accessing the Inmate Locator feature of the Bureau of Prisons ( BOP ) website, www.bop.gov, the Court learned that Bateman is now confined in the USP-Hazelton, located in Bruceton Mills, W est Virginia. Accordingly, on May 12, 2011, the Clerk of the Court mailed another copy of the Deficiency Order to Bateman at USP-Hazelton. See R. 5 (Clerk s notation in bold). That mailing has not been returned as Undeliverable. More than twenty days have passed since the May 12, 2011, re-mailing, but Bateman has neither paid the $5.00 filing fee nor submitted a motion to proceed in forma pauperis. 2 (prisoner s subsequent transfer to another facility mooted his Fourteenth Amendment claims and demands for injunctive relief). Reed cannot seek relief from the conditions of BOP confinement in a § 2241 petition. See Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004); Sullivan v. United States, 90 F. App x 862, 863 (6th Cir. 2004). He must his submit his request for transportation to a federal courthouse in a civil rights action filed under 28 U.S.C. § 1331, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and either pay the $350.00 filing fee or seek pauper status in that case. Prior to filing a civil rights action, Reed must fully exhaust his claim through the BOP s administrative remedy process, 28 C.F.R. § 542.10-19. Even if Reed fully exhausts his demand, it would likely be summarily dismissed on the merits because he lacks standing to initiate a criminal action. The decision whether or not to prosecute, and what charge to file or bring before a grand jury, rests exclusively with state and federal prosecutors. United States v. Armstrong, 518 U.S. 456, 464 (1996); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); Sahagian v. Dickey, 646 F.Supp. 1502, 1506 (W.D. Wis. 1986). A person has no legal interest in the prosecution or nonprosecution of another. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). CONCLUSION Accordingly, IT IS ORDERED as follows: (1) The Clerk of the Court is directed to terminate USP-Big Sandy as the Respondent to this action and to designate D. Berkebile, the Warden of USP-Big Sandy and Reed s custodian, as the sole Respondent to this action. 3 (2) The 28 U.S.C. § 2241 petitions filed by Courtney Bateman and Robert Andrew, [R. 2 & 3], are DENIED. (3) Judgment shall be entered contemporaneously with this Memorandum Opinion and Order in favor of the Respondent. (4) The Clerk of the Court is directed to send a copy of this Order to Petitioner Courtney Bateman at USP-Hazelton, P.O. Box 2000, Bruceton Mills, West Virginia, 26525. Dated this 6th day of June, 2011. 4

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