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Garcon v. Cruz

United States District Court, D. South Carolina, Greenville Division

April 28, 2015

Julien Garcon, #XXXXX-XXX, Plaintiff,
v.
Warden Cruz, Warden sued in their official capacities, Secretary of Department of Homeland Security, sued in their official capacities; Unit Manager David C. Palmatier, ICE/ERO sued in their official capacities; Director Ricardo Wong, ICE/ERO Chicago Field Office sued in their official capacities; Federal Bureau of Prisons, sued in their official capacities; Warden Meeks, sued in their official capacities; United States of America, sued in their official capacities, Defendants.

REPORT OF MAGISTRATE JUDGE

KEVIN F. McDONALD, Magistrate Judge.

This is a civil action filed by a federal prisoner. The pleadings submitted by the plaintiff indicate that he wanted to "convert" his pending Section 2241 habeas corpus action, Garcon v. Cruz, Civil Action No. 6:14-4332-RMG-KFM, into a civil rights action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). One cannot convert a habeas action into a civil rights action. The filing fees are different. Moreover, in a civil rights action against federal employees and officials, service of process must be made in accordance with Federal Rule of Civil Procedure 4(i). Hence, a separate civil action number was assigned to the above-captioned matter.

In an order (doc. 7) filed in this case on April 8, 2015, the undersigned directed the plaintiff to bring this case in to "proper form" by submitting a motion for leave to proceed in forma pauperis, a Financial Certificate, summonses, and Forms USM-285. Also, on April 8, 2015, the undersigned issued a Report and Recommendation (doc. 8) that the plaintiff's motion for a temporary restraining order/preliminary injunction (doc. 2) be denied. In the Report and Recommendation, the undersigned noted that the plaintiff was relying on a class certification order issued by the United States District Court for the Northern District of Illinois in Moreno v. Napolitano, Case No. 11 C 5452, 2014 WL 4911938 (N.D. Ill. Sept. 30, 2014), a case still pending before United States District Court for the Northern District of Illinois.

On April 27, 2015, the plaintiff filed a motion to hold this case in abeyance or to dismiss without prejudice (doc. 11). In his motion, the plaintiff states that he was under the impression that Moreno v. Napolitano had been resolved (doc. 11 at 1). The plaintiff requests that the above-captioned case be held in abeyance or be dismissed without prejudice until Moreno v. Napolitano is resolved.

No filing fee has yet been assessed in this case because this case is not "in proper form." Therefore, the plaintiff is not out any money from his inmate trust account. Accordingly, it is recommended that the court grant, in part, the plaintiff's motion (doc. 11) and dismiss this case without prejudice.


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