United States District Court, W.D. Louisiana, Lake Charles Division
JUAN ALBERTO ORTIZ-LOPEZ, ET AL.
LORETTA LYNCH, ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is a Motion to Dismiss [doc. 18] filed pursuant to
Rules 12(b)(1), (2), (3), and (6) of the Federal Rules of
Civil Procedure by the Director of the Federal Bureau of
Prisons and United States Attorney General Jefferson B.
Sessions, III, respondents in this matter. This matter has
been referred to the undersigned for review, report, and
recommendation in accordance with the provisions of 28 U.S.C.
motion to dismiss relates to a petition filed in the United
States District Court for the District of Columbia, by
several inmates in the custody of the Bureau of Prisons. Doc.
1. They assert that their convictions and sentences violate
various constitutional provisions. Id. at 1-11. In
relief, they seek 1) a declaration that the respondents have
violated the Constitution, 2) release from prison, and 3)
whatever other relief the court deems appropriate, including
but not limited to costs of their commercial transportation
home. Id. at 12.
respondents filed the Motion to Dismiss, challenging subject
matter jurisdiction, personal jurisdiction, and venue in the
District of Columbia. Doc. 18. They also maintain that
plaintiffs have failed to state a claim on which relief can
be granted. Id. Although the petitioners asserted
that they were seeking relief through a civil rights
complaint under Bivens v. Six Unknown Named Agents,
91 S.Ct. 1999 (1971), the district court construed the action
as a habeas petition filed pursuant to 28 U.S.C. § 2241
because it attacked the fact or duration of his confinement
rather than the conditions of same. Doc. 34. The district
court observed that all petitioners had been incarcerated at
the Federal Correctional Institution at Oakdale, Louisiana
(“FCIO”) when the petition was filed.
Id. As it noted, jurisdiction in a § 2241
petition challenging present physical confinement is only
possible in the district of incarceration. Id.
Accordingly, the court ordered that the matter be transferred
to the districts where petitioners were currently
incarcerated. Doc. 34. The claims of Juan Alberto
Ortiz-Lopez, Jorge Luis Solar-Chima, Manuel Julin Carnales,
Elder Nehemia Lopez-Hernandez, and Rafael Antonio
Patino-Villalobos, who remained and are still at FCIO, were
transferred to this court on July 16, 2018. Doc. 35.
respondents' motion to dismiss remains pending, and is
opposed (in relevant part) by petitioners Juan Alberto
Ortiz-Lopez [doc. 23], and Jorge Luis Solar-Chima, Manuel
Julin Carnales, Elder Nehemia Lopez-Hernandez, and Rafael
Antonio Patino-Villalobos, who all adopted Ortiz-Lopez's
response. See doc. 26 and unnumbered minute order
dated January 18, 2018. Respondents have also filed a reply.
Doc. 32. Accordingly, the matter is now ripe for review.
court does not challenge the conclusions of the transferor
court that (1) the petition is properly construed as a habeas
petition under § 2241 and (2) the only district with
jurisdiction over such a petition is the district of
incarceration. Preiser v. Rodriguez, 93 S.Ct. 1827,
1841 (1973); Lee v. Wetzel, 244 F.3d 370, 373-74
(5th Cir. 2001). Accordingly, we consider the motion to
dismiss with respect to the petitioners whose claims were
transferred to this court and the grounds that were not
mooted by the transfer.
Rule 12(b)(1) motion
motion under Rule 12(b)(1) attacks the court's
jurisdiction to hear and decide the case. Fed.R.Civ.P.
12(b)(1). The burden lies with the party seeking to invoke
the court's jurisdiction. Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001). Lack of
subject matter jurisdiction may be found based on: (1) the
complaint alone; (2) the complaint supplemented by undisputed
facts in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed
facts. Id. On a facial attack to subject matter
jurisdiction, which is based on the sufficiency of the
complaint, court accepts all well-pleaded allegations in the
complaint as true and construes those allegations in a light
most favorable to the plaintiff. Garcia v. Copenhaver,
Bell & Associates, M.D.'s, P.A., 104 F.3d 1256,
1260-61 (11th Cir. 1997); Pike v. Office of Alcohol and
Tobacco Control of the La. Dep't of Rev., 157
F.Supp.3d 523, 533 (M.D. La. 2015).
court is not required to show such deference when resolving
factual attacks, however. “On a factual attack of
subject matter jurisdiction, a court's power to make
findings of fact and to weigh the evidence depends on whether
the . . . attack . . . also implicates the merits of
plaintiff's cause of action.” Taylor v.
Dam, 244 F.Supp.2d 747, 753 (S.D. Tex. 2003) (quoting
Garcia, 104 F.3d at ...