Silva v. Paul
- Eric Tostrud
- 0:18-cv-02177
- U.S. District Court · District of Minnesota
- 3
In Silva v. Paul, Judge Tostrud denied Silva’s habeas petition and emergency-motion requests, while allowing conversion to a Bivens action if he paid the remaining fee.
Natividad Silva’s detention petition and emergency-relief requests were denied. He was given until February 25, 2019, to convert the case into a Bivens action by filing notice and paying the remaining filing fee; otherwise, the action would be dismissed.
What happened
In Silva v. Paul, Natividad Silva, representing himself, asked the court to review his detention and later sought an emergency court order. A magistrate judge recommended denying both requests because several of Silva’s claims were not properly brought through a detention challenge.
Silva objected and said he did not want to pursue a separate constitutional lawsuit. The court independently reviewed the recommendation and agreed with its analysis. It explained that claims about administrative procedures, confinement conditions, and retaliation would need to be brought, if at all, as a different type of constitutional action.
Judge Tostrud overruled Silva’s objections, accepted the recommendation in full, denied the petition and the request for emergency relief, and gave Silva until February 25, 2019, to choose to convert the case into that separate action. Any notice had to include the remaining filing fee, after crediting the $5 he had already paid; otherwise, the court said the action would be dismissed.
The detailed version
- Silva v. Paul · No. 0:18-cv-02177
- Eric Tostrud
- Feb. 11, 2019
Background
Natividad Silva filed this case without a lawyer by submitting a petition under 28 U.S.C. § 2241, a procedure used to challenge certain forms of detention. He later filed a motion for a temporary restraining order, preliminary injunction, and emergency hearing.
Magistrate Judge Elizabeth Cowan Wright recommended denying both the petition and the emergency-relief motion. The recommendation explained that Silva’s claims concerning the Administrative Procedure Act, the conditions of his confinement, and alleged retaliation were not properly brought in a detention challenge under § 2241. If Silva wished to pursue those claims, the recommendation stated that they would need to be brought, if at all, as a constitutional action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. The recommendation also noted that Silva had three prior qualifying dismissals under 28 U.S.C. § 1915(g), so he could not proceed without paying the full filing fee.
Objections and Review
Silva objected to the recommendation and specifically stated that he did not want to pursue a Bivens action. The respondent supported adopting the recommendation in full. Because Silva objected, the district court independently reviewed the recommendation under 28 U.S.C. § 636(b)(1) and the applicable local rule. The court concluded that Magistrate Judge Wright’s analysis and conclusions were correct.
Ruling
The court overruled Silva’s objections and accepted the Report and Recommendation in full. Judge Eric C. Tostrud ordered that Silva’s petition for a writ of habeas corpus be denied and that his motion for a temporary restraining order, preliminary injunction, and emergency hearing also be denied.
Although Silva repeatedly disclaimed any intention to pursue a Bivens action, the court gave him a final opportunity to convert the petition into one. He had to file a notice by Friday, February 25, 2019, and pay the full filing fee minus the $5 he had already paid. The order stated that failure to file the notice or pay the remaining fee in full would result in dismissal of the action. The court did not state that the dismissal would be with or without prejudice.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.