United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter now is before the court on respondent's motion to
dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure (DE 23). Also before the
court are petitioner's motion for order to rescind
detainer (DE 12) and request for order of records by subpoena
(DE 30). The issues raised have been fully briefed and are
ripe for adjudication.
was convicted in the United States District Court for the
Middle District of North Carolina of receiving child
pornography videotapes and using a minor to engage in
sexually explicit conduct for the purpose of producing
videotapes. On August 27, 2001, the court sentenced
petitioner to 180 months and 210 months imprisonment to run
concurrently, together with restitution of $8, 100.00.
See Order, United States v. Prentice, No.
1:01-CR-31-JAB-1 (M.D. N.C. Jan. 27, 2016); see also
Docket Entry, Prentice, No. 1:01-CR-31-JAB-1 (M.D.
N.C. Aug. 27, 2001). In a separate state court criminal
action, petitioner was convicted of a first-degree sex
offense, first- degree rape, and indecent liberties in
conjunction with his rape of a three-year old child as
depicted in the videos. See Order,
Prentice, No. 1:01-CR-31-JAB-1 (M.D. N.C. Jan. 27,
April 7, 2014, petitioner filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241,
“alleging various claims regarding property seized
following his arrest, issues surrounding the payment of his
restitution order, funds paid by him in the form of inmate
medical co-pays, the loss of his prison job, the denial of
access to the Bureau of Prisons (‘BOP') TRULINCS1
inmate email system, issues concerning language in his
Presentence Investigation Report (‘PSR'), and
challenging several of his supervised release
conditions.” Prentice v. Bureau of Prisons,
No. 5:14-HC-2062-BO, 2015 WL 4928953 (E.D. N.C. Aug. 18,
2015) (hereinafter “Prentice I”),
aff'd sub nom. Prentice v. Andrews, 633
Fed.Appx. 587 (4th Cir. 2016). These claims included
challenges to the payment schedule imposed by the BOP through
the Inmate Financial Responsibility Program
(“IFRP”). Id. at * 4. Petitioner's
first § 2241 petition was dismissed on the merits upon
motion for summary judgment.
January 9, 2015, petitioner filed a civil rights complaint
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). See
Prentice v. Bureau of Prisons, et al., No.
5:15-CT-3006-H (E.D. N.C. Jan. 9, 2015). In that complaint,
petitioner challenged the BOP's application of the IFRP.
Specifically, petitioner claimed that the defendants
improperly managed his prison account by misapplying funds,
garnishing funds in excess of court-ordered restitution,
losing other funds, and retaining or collecting additional
funds without justification. See Order,
Prentice, No. 5:15-CT-3006-H (E.D. N.C. Mar. 17,
2016). The court allowed the action to continue on a due
process claim contained in the complaint, but dismissed
petitioner's claim challenging the BOP's
administration of the IFRP on the ground that “[t]he
IFRP is a means of executing a prisoner's sentence;
therefore, complaints about the BOP's administration of
the program are cognizable under 28 U.S.C. §
2241.” See id., No. 5:15-CT-3006-H (E.D. N.C.
Mar. 17, 2006). Petitioner's surviving claims were
subsequently dismissed due to his failure to exhaust.
See Order, Prentice, No. 5:15-CT-3006-H
(E.D. N.C. February 14, 2017).
April 15, 2016, petitioner filed the instant habeas
petition pursuant to § 2241, again challenging the
BOP's payment collection through the IFRP (DE 1). On
April 19, 2016, petitioner was released from federal custody.
See https://www.bop.gov/inmateloc/ (last
visited August 28, 2017). He is presently in state
confinement at Lanesboro Correctional Institution. see
(last visited August 28, 2017).
November 11, 2016, petitioner filed a motion in which he
seeks “an Order to the Federal Bureau of Prisons . . .
to rescind a bogus detainer.” (Mot. (DE 12) at 1).
Specifically, he contends that BOP records incorrectly
indicate that he has an outstanding warrant for failure to
appear in Honolulu, Hawaii. Id. at 4. Although not
entirely clear, petitioner appears to allege that the
existence of the detainer is negatively affecting his state
custody classification, and could also negatively affect his
release from state custody. Id. at 8.
January 30, 2017, respondent filed the instant motion to
dismiss (DE 23) and responded to petitioner's motion to
rescind detainer (DE 25). Petitioner responded to the motion
Standard of Review
Rule 12(b)(1), the petitioner bears the burden of showing
that federal jurisdiction is appropriate when challenged by
respondents. McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189 (1936); Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). When the Rule 12(b)(1)
motion attacks the complaint as failing to state facts upon
which subject matter jurisdiction may be based, the facts in
the complaint are assumed to be true and the petitioner is
afforded the same protections he or she would receive under a
Rule 12(b)(6) motion. Adams, 697 F.2d at 1219. The
Rule 12(b)(1) motion may attack alternatively the existence
of subject matter jurisdiction in fact, apart from the
complaint. Id. This type of attack is used when a
court's limited jurisdiction precludes hearing the case
brought. Materson v. Stokes, 166 F.R.D. 368, 371
(E.D. Va. 1996) (citing Mortensen v. First Fed. Sav. And
Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977));
Adams, 697 F.2d at 1219. Because the court's
power to hear the case is at issue in a Rule 12(b)(1) motion,
the court is free to weigh the evidence to determine the
existence of jurisdiction. Adams, 697 F.2d at 1219.
motion to dismiss under Rule 12(b)(6) determines only whether
a claim is stated; “it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992). A claim is
stated if the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
evaluating whether a claim is stated, “[the] court
accepts all well-pled facts as true and construes these facts
in the light most favorable to the [petitioner], ” but
does not consider “legal conclusions, elements of a
cause of action, . . . bare assertions devoid of further
factual enhancement[, ] . . . unwarranted inferences,
unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 255 (4th Cir. 2009) (citations omitted). In other words,
this plausibility standard requires a ...