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Ortiz-Lopez v. Lynch

United States District Court, W.D. Louisiana, Lake Charles Division

August 30, 2018

JUAN ALBERTO ORTIZ-LOPEZ, ET AL.
v.
LORETTA LYNCH, ET AL.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before 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. § 636.

         I.

         Background

         The 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.

         The 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.

         The 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.

         II.

         Law & Analysis

         This 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.[1]

         A. Rule 12(b)(1) motion

         1. Standard

         A 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).

         The 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 ...


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