LINDBERG v. COHEN (2021)

OPINION AND ORDER

On June 15, 2021, petitioner-plaintiff Greg E. Lindberg, a federal prisoner currently incarcerated in the Federal Prison Camp in Montgomery, Alabama, filed this action seeking, among other things, emergency-habeas relief and, in the alternative, preliminary-injunctive relief, allowing him to attend a civil bench trial set to begin on June 21 in state court in North Carolina. On June 18, the United States Magistrate Judge entered a recommendation that Lindberg's petition for emergency-habeas relief and alternative motion for preliminary injunction be denied. The magistrate judge gave Lindberg until June 28, seven days after the start of the bench trial, to file objections to the recommendation. Therefore, on that same day, June 18, this court entered an order “that, to the extent petitioner Greg E. Lindberg seeks emergency or preliminary injunctive relief from the court before June 21, 2021, he shall file any objections to the report and recommendation of the United States Magistrate Judge by 5:00 p.m. today.” Order (Doc. 19) (emphasis added). No objections were filed in response to the court's June 18 order.

After an independent and de novo review of the record, and based on the reasons set forth in the government's response (Doc. 17) and the recommendation (Doc. 18), the court concludes that the magistrate judge's recommendation should be adopted to the extent that Lindberg seeks emergency-habeas or preliminary-injunctive relief from the court before June 21. Lindberg still has until June 28, when the magistrate judge's recommendation goes under final submission, to file objections.

***

Accordingly, it is the ORDER, JUDGMENT, and DECREE of the court as follows:

(1) The United States Magistrate Judge's recommendation (Doc. 18) is adopted to the extent that petitioner-plaintiff Greg E. Lindberg seeks emergency-habeas and alternative preliminary-injunctive relief from the court before June 21, 2021.

(2) The petition for writ of habeas corpus (Doc. 1) is denied to the extent that petitioner-plaintiff Lindberg seeks emergency-habeas relief from the court before June 21, 2021.

(3) The motion for preliminary injunction (Doc. 1) is denied to the extent petitioner-plaintiff Lindberg seeks preliminary-injunctive relief from the court before June 21, 2021.

(4) As to the final submission of the magistrate judge's recommendation (Doc. 18); the final submission of petitioner-plaintiff Lindberg's petition for writ of habeas corpus (Doc. 1) to the extent he seeks emergency-habeas relief; and the final submission of petitioner-plaintiff Lindberg's motion for preliminary injunction (Doc. 1), petitioner-plaintiff Lindberg still has until June 28, 2021, to file objections, as allowed by the magistrate judge.

This case is not closed.

DONE, this the 19th day of June, 2021.

Attachment

A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov

Effective on December 1, 2013, the fee to file an appeal is $505.00

CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).

(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:

 i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);

 ii. Orders appointing receivers or refusing to wind up receiverships; and

iii. Orders determining the rights and liabilities of parties in admiralty cases.

(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.

(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:

(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.

(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”

(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.

(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.

(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.

4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

RECOMMENDATION OF THE MAGISTRATE JUDGE

Greg E. Lindberg (“Lindberg”), an inmate currently incarcerated in the Federal Prison Camp Montgomery, seeks temporary release to attend a civil bench trial set to begin in North Carolina state court on June 21, 2021, that is anticipated to last two weeks. Lindberg Pet. (Doc. 1) pp. 1–2.¹ The civil dispute is between Lindberg and four insurance companies. Lindberg Br. (Doc. 7) p. 7. Lindberg is named personally as a defendant in that suit and contends he is “a key witness in his own and his companies’ defense.” Id. He submitted two furlough requests seeking temporary release or home confinement so that he, “among other things,” can “prepare for and attend the trial in North Carolina.” Id. at 3. Warden Alan Cohen, however, denied his first request, which was submitted on or around April 30, 2021, and did not answer the second. Id.

Lindberg now petitions this Court for emergency habeas relief and a preliminary injunction. Id. at 1–2. As to the former, he argues that the Court should issue a writ of habeas corpus to protect his right to access to the courts. Id. at 4. As to the latter, he argues that the Court should issue a preliminary injunction ordering the Bureau of Prisons (“BOP”) to facilitate his attendance at the North Carolina trial. Id. at 15. The undersigned addresses each request for relief separately.

I. Emergency Habeas Relief

Lindberg seeks a writ of habeas corpus requiring the BOP to temporarily release him so that he can attend his civil trial in North Carolina. Lindberg Br. (Doc. 7) p. 4. Lindberg's request for temporary release is governed by the federal furlough statute, 18 U.S.C. § 3622(a). Under that statute, the BOP may temporarily release an inmate to engage in one or more statutorily enumerated activities, including “significant activity consistent with the public interest[.]” 18 U.S.C. § 3622(a).

Upon denial of a furlough request, an inmate may seek judicial review of the BOP's decision via a writ of habeas corpus. See, e.g., Dov v. Bureau of Prisons, 2020 WL 3869107, at *4 (S.D.N.Y. July 9, 2020); United States v. Roberts, ––– F.Supp.3d ––––, –––– n.3, 2020 WL 1700032, at *3 n.3 (S.D.N.Y. Apr. 8, 2020). Such review, however, is limited, and a reviewing court will not lightly second guess a final decision by the BOP. Roberts, ––– F.Supp.3d at –––– n.3, 2020 WL 1700032, at *3 n.3 (collecting cases). Here, Lindberg seeks a writ of habeas corpus ordering the BOP to release him for the purpose of attending the North Carolina trial. Lindberg Br. (Doc. 7) p. 4. He contends that such a writ is necessary to protect his “right to access the courts.” Id.

As an initial matter, a prisoner has no constitutional right of access to the courts to litigate a civil claim that is unrelated to his conviction or conditions of confinement. Simmons v. Sacramento Cnty., 318 F.3d 1156, 1160 (9th Cir. 2003) (citing Lewis v. Casey, 518 U.S. 343, 354-55, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.”) (emphasis in original)). Indeed, in Price v. Johnston, the Supreme Court explained that incarceration curtails many otherwise unqualified rights:

Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Among those so limited is the otherwise unqualified right given by § 272 of the Judicial Code, 28 U.S.C. § 394, 28 U.S.C.A. § 394, to parties in all the courts of the United States to ‘plead and manage their own causes personally.’

334 U.S. 266, 285–86, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), abrogated in part on other grounds by McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Relying on Price, the Eleventh Circuit—along with several other Circuits ² —have concluded that an inmate “has no absolute right to be present at the trial of his civil action.” Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987).

Accordingly, a federal district court has broad—but not unlimited—discretion in deciding whether to issue a writ of habeas corpus to permit an inmate to attend his own civil trial. Hawkins v. Maynard, 89 F.3d 850 (10th Cir. 1996). In determining whether to issue such a writ, courts in the Eleventh Circuit must weigh four factors: “whether the prisoner's presence will substantially further the resolution of the case, the security risks presented by the prisoner's presence, the expense of the prisoner's transportation and safekeeping, and whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted.” Poole, 819 F.2d at 1028 (quoting Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir. 1977)).³

Turning to this case, the undersigned concludes that three factors weigh against issuing a writ of habeas corpus permitting Lindberg to attend his North Carolina trial. First, Lindberg's presence will have little—if any—effect on the resolution of the case. United States v. Chatman, 584 F.2d 1358, 1360 (4th Cir. 1978) (holding that no violation of the right to access courts occurs where the inmate is represented by counsel and experiences no unfair confinement conditions). Lindberg and his companies are represented by counsel in the North Carolina suit and Lindberg wishes to be present at the trial so that he can converse with his lawyers in real time, rather than discussing the case with his lawyers at day's end. Lindberg Br. (Doc. 7) p. 7.

Lindberg, however, fails to explain how real-time communication with his lawyers will substantially further the resolution of the trial. To be sure, Lindberg vehemently maintains that he is a “key witness,” in his case, but he does not describe with any level of specificity the anticipated relevance of his testimony or the ways in which it will make a substantial impact on the outcome of the trial. Id. Simply put, Lindberg's vague assertions are insufficient to show that his presence would have a substantial impact on the outcome of his civil trial. The undersigned therefore finds that the first factor weighs against granting habeas relief in this case.

Second, transporting Lindberg across the country—at the eleventh hour before trial—would incur an expense and a burden on the Government. Temporarily releasing an inmate so that he can travel hundreds of miles away from his place of incarceration comes with great financial and administrative costs, not to mention logistical challenges and communications between various government agencies. See In re Palm Beach Partners, Ltd., 251 B.R. 906, 908 (Bankr. S.D. Fla. 2000) (declining an inmate's request to appear in person at a civil hearing due to “the cost to the United States Marshall Service in transporting [him] to West Palm Beach, Florida and housing [him] there” for the remainder of the proceeding). Considering that Lindberg's trial is set to occur in North Carolina and last two weeks, the undersigned finds that these concerns weigh against granting habeas relief in this case.⁴

Third, the North Carolina case is set to begin in approximately seventy-two hours. Lindberg Br. (Doc. 7) p. 6. Delaying that trial at this eleventh hour would almost certainly prejudice the parties, witnesses, and judicial personnel who are directly or indirectly participating in the trial. See Doe v. City of Los Angeles, 2013 WL 6019121, at *11 (C.D. Cal. Nov. 13, 2013) (explaining that a last-minute continuance prejudices those involved in the trial). A last-minute delay in the North Carolina case could be especially prejudicial considering the complex nature of the dispute. See, e.g., In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (“That the case is ‘an involved, complex case increases the prejudice from the delay.’ ”) (quoting Anderson v. Air W., Inc., 542 F.2d 522, 525 (9th Cir. 1976)); ITEL Cap. Corp. v. Dennis Min. Supply & Equip., Inc., 651 F.2d 405, 408 (5th Cir. 1981) (summarily dismissing a petition for habeas relief where the inmate filed his petition seventy-two hours before his civil trial was set to begin).

Accordingly, the undersigned finds that the third factor—along with the first and second factors—weighs against granting habeas relief in this case. To be sure, nothing in the record indicates that Lindberg's presence at the North Carolina trial would create a security risk. But this factor alone is insufficient to outweigh the aggregate of the three factors discussed above.⁵ Because three of the four factors weigh against granting habeas relief in this case, the undersigned concludes that Lindberg's petition for writ of habeas corpus should therefore be denied.

II. Preliminary Injunctive Relief

In the alternative, Lindberg requests that the Court issue a preliminary injunction ordering the BOP to facilitate Lindberg's appearance at the North Carolina trial. Lindberg Br. (Doc. 7) p. 4. A preliminary injunction should be issued only when drastic relief is necessary. All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989). To receive preliminary injunctive relief, the movant bears the burden to show that: (1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the injunction would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest. Long v. Sec'y, Dep't of Corr., 924 F.3d 1171, 1176 (11th Cir. 2019) (citing Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011)); Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir. 1975).⁶ For the reasons explained above,⁷ Lindberg has not shown that his habeas petition has a substantial likelihood of success on the merits. The undersigned therefore concludes that his request for preliminary injunctive relief should be denied.

* * *

Undoubtedly, Lindberg “could prosecute this litigation better if he were a free man, or if he were imprisoned in [North Carolina] rather than [Montgomery], but that reality does not make him free, require his relocation to the prison most favorably situated to his pending litigation, or compel his custodian to act as his chauffeur.” Ivey v. Harney, 47 F.3d 181, 186 (7th Cir. 1995). Because Lindberg has failed to show that habeas relief or preliminary injunctive relief is appropriate in this case, the undersigned RECOMMENDS that his petition for writ of habeas corpus and motion for preliminary injunction (Doc. 1) be DENIED.

It is ORDERED that the parties shall file any objections to this Recommendation on or before June 28, 2021.⁸ A party must specifically identify the factual findings and legal conclusions in the Recommendation to which each objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's findings and recommendations in accordance with the provisions of 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the District Court of legal and factual issues covered in the Recommendation, and waives the right of the party to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); 11th Cir. R. 3-1; see also Stein v. Reynolds Secs., Inc., 667 F.2d 33 (11th Cir. 1982); Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

DONE this 18th day of June, 2021.

FOOTNOTES

1.   The undesigned provides the following factual allegations as they are presented in Lindberg's brief. Additionally, for purposes of this recommendation, the undersigned presumes without deciding that Lindberg has standing to bring his claims, that service of process has been effectuated on all necessary parties, and that Lindberg exhausted his available administrative remedies before filing this action. See Perez v. Lappin, 672 F. Supp. 2d 35, 40 (D.D.C. 2009).

2.   See, e.g., Michaud v. Michaud, 932 F.2d 77, 81 (1st Cir. 1991); Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 112 (4th Cir. 1988); In re Wilkinson, 137 F.3d 911, 914 (6th Cir. 1998); Ivey v. Harney, 47 F.3d 181, 186 (7th Cir. 1995); Hawkins v. Maynard, 89 F.3d 850 (10th Cir. 1996).

3.   In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the Fifth Circuit Court of Appeals issued before the close of business on September 30, 1981.

4.   Lindberg asserts that he is “fully prepared to cover the expenses of attending the North Carolina trial (including, as necessary, government expenses connected to transport or monitoring). Lindberg Br. (Doc. 7) p. 15. That may be so, but Lindberg's willingness to cover financial costs does not alleviate the undersigned's concerns regarding the non-financial burdens associated with temporarily releasing him to travel across the country to reside in North Carolina for two weeks or more.

5.   In the alternative to physically attending the North Carolina trial, Lindberg requests that the Court permit him to attend virtually via video teleconference. Lindberg Br. (Doc. 7) pp. 10–13. He has not explained in any detail how—from a logistical standpoint—he would attend the trial via video teleconference or how the North Carolina state court would accommodate his virtual attendance. Indeed, as Lindberg acknowledges, the North Carolina court has a preference against the parties attending via video teleconference. Id. at 8.

6.   The third and fourth elements merge when—as here—the Government is the nonmovant. Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

7.   See supra Part I.

8.   The undersigned finds that the exigent nature of this action necessitates shortening the time period for filing objections from fourteen days to ten days. See, e.g., United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978); Hisp. Counseling Cntr., Inc. v. Inc. Vill. of Hempstead, 237 F. Supp. 2d 284, 290 (E.D.N.Y. 2002).

Myron H. Thompson, UNITED STATES DISTRICT JUDGE