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Matthews v. Tatum

United States District Court, D. New Hampshire

May 18, 2016

Alexander Otis Matthews
v.
Esker Tatum, Warden, Federal Correctional Institution-Berlin

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, Magistrate Judge.

         Before the court for a preliminary review is pro se petitioner Alexander Otis Matthews's filing (doc. no. 1), entitled, "Emergency Petition For a Writ of Habeas Corpus Pursuant to 28 USC § 2241 & Request For Order To Show Cause & Temporary Restraining Order." The matter, docketed as a petition for a writ of habeas corpus under § 2241, is before the court to determine whether the petition is facially valid and may proceed. See Rule 4 of the Rules Governing Section 2254 Cases ("§ 2254 Rules"); see also § 2254 Rule 1(b) (authorizing court to apply § 2254 Rules to habeas corpus petitions filed under § 2241).

         Background

         Matthews is an inmate at the Federal Correctional Institution in Berlin, New Hampshire, who describes himself as "a frequent filer in federal courts." Pet. (doc. no. 1). Following Bruce v. Samuels, 136 S.Ct. 627 (2016), the Federal Bureau of Prisons ("BOP") began implementing 28 U.S.C. § 1915(b)(2) in Matthews's circumstances, by withdrawing essentially all of Matthews's available funds to pay his federal court filing fees.

         Matthews follows a self-styled "vegetarian diet" while in prison and eats only rice, beans, and mackerel that he purchases from the commissary. He notes that his supply of those foods has run out. Because of the low balance remaining in his inmate account, Matthews asserts he can no longer afford to pay for hygiene products and food from the commissary. Matthews further states that the lack of funds in his account makes it difficult to pay for letters and phone calls to his family and the outside world.

         Matthews asserts that he filed this suit before exhausting his administrative remedies, in part, because of the "emergency nature of this petition." Pet. (doc. no. 1). Matthews asks that the exhaustion requirement be waived or that he be permitted to exhaust his claims while this case is pending, after the court issues a preliminary injunction preventing the BOP from making any further withdrawals from Matthews's inmate account to pay court filing fees. See id.

         Claims

         Matthews asserts the following claims, challenging both the constitutionality of 28 U.S.C. § 1915(b)(2), and BOP's actions in depleting Matthews's inmate account:

1. Section 1915(b)(2) violates Matthews's First Amendment rights to petition the government for redress of grievances, as BOP's depletion of his inmate account retaliates against Matthews for filing federal cases while incarcerated.
2. Section 1915(b)(2) violates Matthews's First and Fifth Amendment right of access to the courts, as BOP's depletion of his inmate account precludes Matthews from filing new cases.
3. Section 1915(b)(2) violates Matthews's First Amendment rights to correspond with and call his family, as BOP's depletion of his inmate account precludes Matthews from making phone calls or sending letters.
4. Section 1915(b)(2) violates Matthews's Eighth Amendment rights, as BOP's depletion of his inmate account precludes Matthews from purchasing hygiene items and food from the commissary.

         Matthews requests the following relief: (1) an order declaring 28 U.S.C. § 1915(b)(2) to be unconstitutional and directing Congress to amend it; and (2) a preliminary injunction restraining the BOP from making any further ...


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