United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, Magistrate Judge.
In July 2014, Johnny Deluis-Morelos, also known as Hector Luis Ramos DeLeon, initiated a habeas action pursuant to 28 U.S.C. § 2241, seeking release from immigration detention on the basis that he is a United States citizen. See Deluis-Morelos v. U.S. Immigration and Customs Enforcement, et al., No. C14-1077-BAT (W.D. Wash.). According to U.S. Immigration and Customs Enforcement ("ICE"), he is a Colombian citizen who is in the United States unlawfully. He has been detained at the Northwest Detention Center since 2012 pending resolution of his removal proceedings. The Court appointed the Federal Public Defender to represent Mr. Deluis-Morelos in that action, and an evidentiary hearing regarding his citizenship claim is scheduled for April 2015.
In January 2015, Mr. Deluis-Morelos filed under case number C14-1077-BAT a civil rights complaint pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging that ICE Officer Jennifer Sanchez violated his constitutional rights because she detained him as a Colombian citizen despite his assertion that he was born in Puerto Rico. See Case No. C14-1077-BAT, Dkt. 28. As relief, Mr. Deluis-Morelos sought release from immigration detention. Id. at 4. The Court ordered the Clerk to strike the civil rights complaint from the docket in the habeas action and to file it in its own action. Case No. C14-1077-BAT, Dkt. 39.
Now, having reviewed Mr. Deluis-Morelos's Bivens complaint, which was filed under the instant case number, the Court recommends that it be dismissed prior to service. Although Mr. Deluis-Morelos attempts to bring a civil rights claim by alleging that Officer Sanchez violated his constitutional rights, his complaint should be construed as a petition for habeas corpus under § 2241 because he challenges the fact of his confinement and seeks release from detention-not monetary damages. See Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (court should construe complaint that challenges fact or duration of confinement as a habeas petition pursuant to § 2241). The claims he makes in this action, namely that he should be released because he is a United States citizen, are already before the court in his habeas action, and an evidentiary hearing is scheduled next month to determine his citizenship. If he prevails in that suit, he will be released from detention, which is the only relief he seeks here.
Therefore, the Court recommends that this action be DISMISSED with prejudice as duplicative of his habeas petition pending under case number C14-1077-BAT. The Clerk shall send a courtesy of this Report and Recommendation to counsel in cause number C14-1077-BAT. A proposed order accompanies this Report and Recommendation.
This Report and Recommendation is not an appealable order. Therefore a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge enters a judgment in the case. Objections, however, may be filed and served upon all parties no later than March 24, 2015. The Clerk should note the matter for March 27, 2014, as ready for the District Judge's consideration if no objection is filed. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. The matter will then be ...