Edwards v. Cox et al, No. 4:2020cv04074 - Document 26 (D.S.D. 2021)
Court Description: OPINION AND ORDER Dismissing Case without Prejudice Signed by Chief Judge Roberto A. Lange on 01/26/2021. (KLE)
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Edwards v. Cox et al Doc. 26 Case 4:20-cv-04074-RAL Document 26 Filed 01/26/21 Page 1 of 2 PageID #: 152 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION TIMOTHY EDWARDS, 4:20-CV-04074-RAL Plaintiff, OPINION AND ORDER DISMISSING CASE vs. WITHOUT PREJUDICE WARDEN J.W. COX,DR.BOYD,DR. PIERCE,FPC YANKTON,BUREAU OF PRISON,(BOP); MRS. ALLEN, MR. MERTENS, Defendants. On June II, 2020,this Court entered an Order Screening Petition and Addressing Pending Motions, Doc. 11. Among other things, this Court granted Plaintiff Timothy Edwards until July 11, 2020, to proceed with a Bivens action, had the Clerk of Court mail to Edwards a civil rights complaint form by which to do so, granted Edwards the requested in forma pauperis status, transferred his compassionate release motion to the district of his sentencing, and explained in the eight-page decision why as a federal inmate he could file a Bivens action but not a § 1983 claim. Edwards filed an interlocutory appeal to the Eighth Circuit, Doc. 14, which was promptly denied and dismissed. Doc. 22. On July 10, 2020, rather than filing a Bivens complaint, Edwards filed a motion to appoint counsel. Doc. 20, and a motion to extend time to file a § 1983 action. Doc. 21. This Court denied his motion for counsel because "[a] pro se litigant has no statutory or conditional right to have counsel appointed in a civil case." Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1988). This Dockets.Justia.com Case 4:20-cv-04074-RAL Document 26 Filed 01/26/21 Page 2 of 2 PageID #: 153 Court considered the complexity of the case, the ability ofthe litigant to investigate the facts, the existence of conflicting testimony, and the litigant's ability to present his claim. Id. This Court concluded that Edwards was able to present the facts of what could be a Bivens claim and that if he read the Court's prior decision and looked at the form for filing a complaint, he had guidance on how to proceed with filing a Bivens action. This Court then extended the time until August 31, 2020, for Edwards to file a Bivens complaint and directed the Clerk of Court to send to Edwards another copy of this Court's prior order. Doc. 11, and the form for filing a federal civil rights complaint. Edwards' remaining claims are not cognizable under 28 U.S.C. § 2241 or 42 U.S.C.§ 1983. Doc. 11. Edwards has not chosen to file a Bivens action in this Court, despite having been given opportunities to do so. In fact, the only filings in this case since this Court's August 7, 2020 order are an Order of the Eighth Circuit denying Edwards' request for rehearing en banc. Doc. 24, and the Mandate of the Eighth Circuit, Doc. 25. For good cause, it is hereby ORDERED that Edwards' § 2241 and § 1983 complaint in this case is dismissed without prejudice to Edwards filing a Bivens action. DATED this 26th day of January, 2021. BY THE COURT: ROBERTO A. LANGE CHIEF JUDGE
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