Derevianko v. Johnson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DMYTRO DEREVIANKO,
Plaintiff,
v. No. 25-cv-1040-KG-KK
OFFICER JOHNSON, et al,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Dmytro Derevianko’s pro se Civil Complaint.
(Doc. 1) (Complaint). He seeks money damages on the ground that his immigration detention is
unlawful. He also seeks a release from custody in this civil case. Before submitting the instant
Complaint, Plaintiff filed a separate 28 U.S.C. § 2241 proceeding challenging his immigration
detention. (Doc. 1) in 25-cv-869 JB-JHR. In that proceeding, Plaintiff alleges his removal is not
reasonably foreseeable under Zadvydas v. Davis, 533 U.S. 678 (2001). The Section 2241 claims
were referred to the Hon. Jerry Ritter for proposed findings and a recommended disposition.
(Doc. 6) in 25-cv-869 JB-JHR. Magistrate Judge Ritter ordered briefing, and the habeas claims
are pending.
To the extent Plaintiff also challenges his custody in this later-filed civil rights
proceeding, no relief is available. Litigants generally “may not assert habeas corpus claims and
civil rights claims in the same action.” Aigbekaen v. United States, 2023 WL 11862185, at *3
(D. Colo. May 18, 2023); see also Hamilton v. Bird, 650 Fed. App’x 585, 588 (10th Cir. 2016)
(“Because [the inmate] may not pursue civil rights and habeas claims in the same action, the
district court opened a new case to address” the second pleading). Litigants are also not
permitted to pursue the same relief is two concurrent federal actions. See Katz v. Gerardi, 655
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F.3d 1212, 1217 (10th Cir. 2011) (“The rule against claim-splitting requires a plaintiff to assert
all of its causes of action arising from a common set of facts in one lawsuit.”).1 The Court will
therefore deny Plaintiff’s request for release without prejudice. He may continue to prosecute
his duplicate motion for release in the earlier-filed Section 2241 case.
As to the claim for money damages, the Court will require Plaintiff to refile his claims on
the form civil rights complaint. The Clerk’s Office mailed Plaintiff a blank complaint and a
blank motion to proceed in forma pauperis. Plaintiff must return the completed form within
thirty (30) days of this ruling. By the same deadline, Plaintiff must pay the $405 filing fee or,
alternatively, file a motion to proceed in forma pauperis. Any in forma pauperis motion must
include an inmate account statement reflecting transactions for a six-month period. See 28
U.S.C. § 1915(a)(2). Plaintiff is reminded that any “complaint make clear exactly who is alleged
to have done what to whom, to provide each individual with fair notice as to the basis of the
claims against him or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008).
Plaintiff is further advised that, while the civil rights claims are not yet developed enough
to make a substantive ruling, it is unlikely he can obtain money damages based on his
immigration detention. Claims against federal officials must be raised under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Biven recognizes
an implied private action for damages against federal officers alleged to have violated a
constitutional right. However, several courts have held that Bivens does not extend to “claims
arising from civil immigration … detention[], other than those alleging unconstitutionally
1 The Court also notes that sua sponte consolidation is not warranted in this matter, for the same reasons
above.
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excessive force.” De La Paz v. Coy, 786 F.3d 367, 375 (5th Cir. 2015). See also Mirmehdi v.
United States, 689 F.3d 975 (9th Cir. 2011) (finding no Bivens claim for constitutionally invalid
immigration detention); Alvarez v. U.S. Immigr. & Customs Enf’t, 818 F.3d 1194, 1212–13 (11th
Cir. 2016) (“no Bivens remedy is available when a plaintiff claims that he was unconstitutionally
detained after being ordered removed by an immigration judge”). If Plaintiff files an amended
complaint, the pleading should set forth all relevant facts and specify whether he seeks money
damages based on his immigration detention, versus unconstitutional conditions of confinement
or some other wrongdoing. The failure to timely comply with each directive in this Order may
result in dismissal of this civil rights action without further notice. As noted above, such
dismissal will have no impact on Plaintiff’s ability to prosecute his separate Section 2241 case.
IT IS ORDERED:
1. Within thirty (30) days of entry of this Order, Plaintiff shall file an amended civil
rights complaint on the proper form.
2. By the same deadline, Plaintiff shall pay the $405 filing fee or, alternatively, file a
motion to proceed in forma pauperis along with a six-month inmate account statement.
3. To the extent the Complaint (Doc. 1) seeks a release from custody, such request is
denied without prejudice to Plaintiff pursuing relief in his pending Section 2241 case.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its
authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
Filing) accompanying this document.
Electronically filed documents can be found
on the Court’s PACER public access
system.
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