Opinion
Criminal Action No. 5:07-134-JMH (Civil Action No. 09-7075-JMH).
October 29, 2009
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion of Petitioner Calvin Goddard for an Emergency Court Order, in which he asks the Court to enter an order directing the Bureau of Prisons to schedule a surgical consultation and surgery for him on an expedited basis. Having carefully considered the motion and the Court being sufficiently advised, it is ripe for decision.
As an initial matter, the Court notes that the exhibits to Petitioner's motion contain information concerning his medical treatment and condition, and the Court shall direct the Clerk to file those exhibits under seal. Further, because the relief that Petitioner requests does not, directly or indirectly, challenge the validity of his conviction or sentence, it is not cognizable in this proceeding under 28 U.S.C. § 2255. Defendant's motion will therefore be denied so that he may pursue it in a properly filed civil rights action against federal officials under the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). See United States v. Robinson, 2009 WL 1507130 at **4 (S.D.Tex. 2009) (denying without prejudice § 2255 movant's challenge to sufficiency of medical care received in custody as not cognizable under § 2255 because favorable ruling on claim would not automatically entitle prisoner to accelerated release from custody).
Accordingly, IT IS ORDERED:
(1) that the Clerk shall file the Exhibits to Petitioner Calvin Goddard's Motion for an Emergency Court Order UNDER SEAL in the record of this matter and
(2) that this Motion for an Emergency Court Order under 28 U.S.C. § 2255 is DENIED WITHOUT PREJUDICE to Petitioner's pursuit of said relief in an appropriate civil rights action.