Robert Fox v. Warden, FCI Berlin

2022 DNH 051

• Court: District Court, D. New Hampshire
• Decided: April 11, 2022
• Docket: 21-cv-158-SE
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Fox

v. Civil No. 21-cv-158-SE Opinion No. 2022 DNH 051 Warden, FCI Berlin

O R D E R

Robert Fox, proceeding pro se, filed a petition under 28

U.S.C. § 2241, challenging disciplinary proceedings that

resulted in his loss of 27 days of good conduct time and a fine.

Doc. no. 1. He filed his petition in the District of New

Hampshire on February 19, 2021. At that time, Fox was

incarcerated at the Federal Correctional Institution in Berlin,

New Hampshire (“FCI Berlin”). His petition correctly named the

warden of FCI Berlin as the respondent. On May 14, 2021, the

warden filed a motion to dismiss, arguing that Fox failed to

exhaust administrative remedies, which the court construed as a

motion for summary judgment. Doc. nos. 7-8; see Endorsed Order,

July 9, 2021.1

Subsequently, the Federal Bureau of Prisons (“BOP”)

redesignated and transferred Fox from FCI Berlin to the Federal

Correctional Institution in Terre Haute, Indiana (“FCI Terre

Haute”). Doc. no. 18-1. Fox departed FCI Berlin on May 27, 2021,

1 The court will issue a separate order on the warden’s motion for summary judgment. and arrived at FCI Terre Haute on July 15, 2021. Id. On February

18, 2022, the warden filed the instant motion to dismiss,

arguing that Fox’s transfer to FCI Terre Haute deprives the

court of jurisdiction over the petition. Doc. no. 18. The warden

accordingly asks the court to dismiss Fox’s petition without

prejudice. Id.

Fox did not file an objection to the warden’s motion to

dismiss. The lack of an objection to a motion to dismiss does

not prevent the court from evaluating the motion on the merits.

See Pinto v. Univ. of P.R., 895 F.2d 18, 19, 19 n.1 (1st Cir.

1990); LR 7.1(b). After due consideration, the court determines

that the warden is incorrect. Fox’s transfer to FCI Terre Haute

does not deprive the court of jurisdiction over Fox’s § 2241

petition.

The federal habeas statute provides that the proper

respondent to a habeas petition is “the person who has custody

over [the petitioner].” 28 U.S.C. § 2242; see also § 2243 (“The

writ, or order to show cause shall be directed to the person

having custody of the person detained.”). This requirement is

known as the “immediate custodian rule.” Rumsfeld v. Padilla,

542 U.S. 426, 435 (2004). Additionally, courts may only grant

habeas relief “within their respective jurisdictions.” 28 U.S.C.

§ 2241(a). In other words, the court issuing the writ must

2 generally “have jurisdiction over the custodian.” Padilla, 542

U.S. at 442 (quotation omitted).

Much federal case law has been devoted to the question of

jurisdiction in § 2241 habeas corpus proceedings. See Lee v.

Warden, FCI Berlin, 2021 WL 3055027 (D.N.H. July 21, 2021),

approving Lee v. Warden, FCI Berlin, No. 20-cv-148-PB, 2021 WL

3066280, at *1-3 (D.N.H. July 1, 2021) (report and

recommendation) (collecting cases). Two Supreme Court decisions

fuel the analyses in many such cases, particularly those

addressing the question posed here: whether a prisoner’s post-

filing transfer to another jurisdiction impacts the original

court’s ability to grant habeas relief. Those Supreme Court

decisions are Padilla, supra, and Ex parte Endo, 323 U.S. 283

(1944)

In Endo, as in this case, there was no dispute that the

petitioner’s § 2241 petition was properly filed in the first

instance when the petitioner filed in the district in which she

was confined, naming as the respondent her immediate custodian.

Endo, 323 U.S. at 285, 304, 306. Instead, as in this case, the

question was whether the petitioner’s post-filing transfer to an

out-of-state facility deprived the original court of

jurisdiction over the petition. Id. at 304. Government

authorities had sent Mitsuye Endo, an American citizen of

Japanese descent, to a War Relocation Center in northern

3 California. Id. at 284-85. She filed a petition seeking her

freedom in the District Court for the Northern District of

California. Id. at 285. The district court denied her petition,

and Endo began the process of appealing to the Ninth Circuit.

Id. Before the Ninth Circuit could hear the case, the government

sent Endo to a War Relocation Center in Utah. Id.

The Supreme Court discussed the jurisdiction of the

district court in California to issue a writ of habeas corpus in

view of Endo’s transfer to Utah while the case was ongoing. See

id. at 304-07. The Court stated that the California district

court had “acquired jurisdiction,” id. at 306, and assessed

whether there was anyone “within the jurisdiction of the

District Court who is responsible for the detention of appellant

and who would be an appropriate respondent,” id. at 304-05. The

Court concluded there were several officials -- the Acting

Secretary of the Interior and “any official of the War

Relocation Authority”2 -- who could carry out any order that the

California district court issued on Endo’s petition. Id. Thus,

the Court held that “the District Court acquired jurisdiction in

this case and that the removal of Mitsuye Endo did not cause it

2 “(including an assistant director [of the War Relocation Authority] whose office is at San Francisco, which is in the jurisdiction of the District Court.)” Id. at 305.

4 to lose jurisdiction where a person in whose custody she is

remains within the district.” Id. at 306.

In Padilla, the Court analyzed whether the petitioner filed

his § 2241 petition, which challenged his present physical

confinement, properly in the first instance. Padilla, 542 U.S.

at 432-51. Padilla was originally detained in New York and was

later moved to a naval brig in South Carolina. Id. at 431-32.

After he was transferred to South Carolina and while he remained

detained there, Padilla’s attorney filed a § 2241 petition in

the Southern District of New York. Id. at 432. The petition

named as respondents the President and Secretary of Defense of

the United States and the Commander of the South Carolina naval

brig. Id.

The Court of Appeals had concluded that the Secretary of

Defense was a proper respondent because he exercised “the legal

reality of control” over Padilla and was personally involved in

Padilla’s detention. Id. at 433. The Supreme Court acknowledged

that Endo could suggest superficially that “legal control” was

sufficient but differentiated the cases on the basis that

jurisdiction had attached when Endo had filed in the

jurisdiction of her detention and named her immediate custodian,

whereas Padilla had never done so and jurisdiction had never

attached. Id. at 440-42. The Court clarified that the immediate

custodian rule applies until jurisdiction attaches, or unless

5 some other exception applies. Id. at 441-42. Because

jurisdiction had not attached, the Supreme Court reversed the

Court of Appeals and held that the only proper respondent was

the brig Commander under the rule. Id. at 442. The Court further

held that the District Court for the Southern District of New

York did not have jurisdiction to issue a writ to the brig

Commander who was in South Carolina where the petitioner was

confined. Id. at 446-47.

Padilla and Endo govern different jurisdictional inquiries.

When the question pertains to whether a district court initially

acquired jurisdiction over a § 2241 petition challenging present

physical confinement, Padilla controls. When the question

pertains to whether the district court retains its properly

acquired jurisdiction after the petitioner was transferred out

of the district, Endo controls. As the Supreme Court’s opinion

in Padilla expressly describes:

[T]he Court’s holding [in Endo] that the writ could be directed to a supervisory official came not in our holding that the District Court initially acquired jurisdiction -- it did so because Endo properly named her immediate custodian and filed in the district of confinement -- but in our holding that the District Court could effectively grant habeas relief despite the Government-procured absence of petitioner from the Northern District. Thus, Endo stands for the important but limited proposition that when the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner’s release.

6 Endo’s holding does not help respondents here. Padilla was moved from New York to South Carolina before his lawyer filed a habeas petition on his behalf. Unlike the District Court in Endo, therefore, the Southern District never acquired jurisdiction over Padilla’s petition.

Id. at 441 (footnote omitted).

Endo, as reiterated in Padilla, allows the court to retain

jurisdiction after it attaches if the court may direct the writ

to “any respondent within its jurisdiction who has legal

authority to effectuate the prisoner’s release.” Id.; Endo, 323

U.S. at 304-07. Any such respondent need not, and will not, be

the petitioner’s “immediate custodian” in view of the

petitioner’s subsequent transfer. See Padilla, 542 U.S. at 439-

41; Endo, 323 U.S. at 304-07. But cf., e.g., Jones v. Hendrix,

No. 2:20-CV-000247-ERE, 2021 WL 2402196, at *2 (E.D.Ark. June

11, 2021) (interpreting Padilla and Endo to require dismissal of

§ 2241 petition that was properly filed in the first instance

because the petitioner was later transferred to a Texas federal

prison and the court “lack[ed] jurisdiction over the warden of a

Texas federal prison”).

The First Circuit has not had occasion to conduct an

inquiry under Endo with respect to retaining jurisdiction of a

habeas petition after it has attached. See Vasquez v. Reno, 233

F.3d 688, 690-91, 695-96 (1st Cir. 2000) (holding that the

district court lacked jurisdiction over an immigration

7 detainee’s habeas petition that was originally filed in a

district in which neither he nor his immediate custodian was

physically present, and distinguishing the case from Endo, in

which “the court’s jurisdiction had attached”); cf. Thompson v.

Barr, 959 F.3d 476, 479, 490-91 (1st Cir. 2020) (construing an

immigration detainee’s “Emergency Motion for Bail,” which argued

for immediate release due to risks posed by COVID-19 and his

lengthy period of prior detention, as a § 2241 petition, and

transferring said petition to the district where Thompson was

confined at the time he filed the motion because the general

rule under Padilla is that jurisdiction lies only in the

district of confinement).

However, several other Circuit Courts of Appeal have

concluded that a prisoner’s transfer after a district court’s

jurisdiction attaches does not defeat jurisdiction over a habeas

corpus petition. See In re Hall, 988 F.3d 376, 378-79 (7th Cir.

2021); Lennear v. Wilson, 937 F.3d 257, 263 n.1 (4th Cir. 2019);

Pinson v. Berkebile, 604 F. App’x 649, 652-53 (10th Cir. 2015);

McGee v. Martinez, 490 F. App’x 505, 506 (3d Cir. 2012); Owens

v. Roy, 394 F. App’x 61, 62-63 (5th Cir. 2010); White v.

Lamanna, 42 F. App’x 670, 671 (6th Cir. 2002); Harris v.

Ciccone, 417 F.2d 479, 480 n.1 (8th Cir. 1969), cert. denied,

397 U.S. 1078 (1970).

8 Given the circumstances of Fox’s case, the court retains

jurisdiction pursuant to Endo, as reinforced by Padilla. But

see, e.g., Lee, 2021 WL 3055027, approving Lee, 2021 WL 3066280,

at *1-4 (report and recommendation); Parker v. Hazelwood, No.

17-cv-484-LM, 2019 WL 4261832, at *2-4 (D.N.H. Sept. 9, 2019).

This court acquired jurisdiction over Fox’s petition. At the

time he filed his petition, Fox was incarcerated at the BOP

facility at FCI Berlin. His petition named a proper respondent -

- his immediate custodian, the warden of FCI Berlin. While his

properly filed petition was pending, the BOP “procured [the]

absence” of Fox from the District of New Hampshire -- by

redesignating and transferring him to the BOP facility at FCI

Terre Haute. Padilla, 542 U.S. at 441. Therefore, jurisdiction

remains with this court and the court may direct the writ to any

respondent within its jurisdiction who has legal authority to

comply with any order that may issue. See id. (interpreting

Endo).

As reasoned by the Seventh Circuit in Hall when a prisoner

was transferred to another jurisdiction while his petition was

pending:

[Fox’s] petition mirrors Endo’s: he filed in the correct court and named his immediate custodian, and only later was he moved to a different place of detainment. And as in Endo, there is a respondent within the jurisdiction of the original court that has the authority to comply with any order that may issue. Throughout these proceedings, the Bureau of Prisons

9 has been [Fox’s] ultimate custodian. Just as the Acting Secretary of the Interior could respond to the court’s order in Endo, the Bureau can take any necessary action here.

Hall, 988 F.3d at 379. Fox’s petition seeks to have his lost

good conduct time restored, his guilty finding on the underlying

incident expunged, and the value of the fine unfrozen from his

account. See doc. no. 1 at 1-2. The BOP can take any necessary

action resulting from the court’s order(s) on Fox’s petition.

See Hall, 988 F.3d at 379. Therefore, the court need not dismiss

Fox’s petition despite his transfer out of the District of New

Hampshire.

Conclusion

For the foregoing reasons, the warden’s motion to dismiss

(doc. no. 18) is denied. Fox’s post-filing transfer to FCI Terre

Haute does not deprive the court of the jurisdiction it

previously acquired over his § 2241 petition.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge

April 11, 2022

cc: Robert Fox, pro se. Seth R. Aframe, Esq.