United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.
a state prisoner appearing pro se, filed a Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983, [Doc. No. 1],
and Chief United States District Judge Timothy D. DeGiusti
referred the matter for initial proceedings consistent with
28 U.S.C. § 636(b)(1)(B) and (C). At issue is
Petitioner's application for leave to proceed in forma
pauperis, [Doc. No. 2].
filed his action as one arising under 42 U.S.C. § 1983.
In the Complaint, Petitioner asserts his sentence is being
calculated pursuant to the 85% rule, where individuals
convicted of certain crimes must serve at least 85% of their
sentence prior to becoming eligible for consideration for
parole. Compl. [Doc. No. 1], at 2; see also Okla.
Stat. tit. 21, § 13.1. Petitioner asserts the
application of the 85% rule to his sentence is
unconstitutional because it violates his due process laws and
the application of the rule to his sentence amounts to an ex
post facto law. Compl. 2-5. As relief, Petitioner asks the
court to “disallow application of 85% from [his]
records, and apply all enhanced credits and recalculate [his]
time.” Id. at 7.
action seeking the type of relief requested by Petitioner can
be properly brought as a Section 2241 habeas corpus action.
See Bridenstine v. Farris, No. CIV-16-498-R, 2017 WL
4545210, at *3 (W.D. Okla. Sept. 15, 2017), report and
recommendation adopted, 2017 WL 4544611 (W.D. Okla. Oct.
11, 2017) (“Petitioner's Ground One-in which he
asserts that Respondent is retroactively ‘forcing
Petitioner to serve 85% of his sentence' . . . before he
is eligible to be considered for parole, in violation of the
Due Process Clause and the Ex Post Facto Clause-is cognizable
under 28 U.S.C. § 2241(c)(3).”). On the other
hand, Plaintiff's action cannot be brought pursuant to
Section 1983 because he seeks a reduction in the term of his
confinement. See Wilkinson v. Dotson, 544 U.S. 74,
81-82, (2005) (“[A] state prisoner's § 1983
action is barred (absent prior invalidation)-no matter the
relief sought (damages or equitable relief), no matter the
target of the prisoner's suit (state conduct leading to
conviction or internal prison proceedings)-if
success in that action would necessarily demonstrate the
invalidity of confinement or its duration.”). As such,
the Court construes Petitioner's claim as a Section 2241
application and attached financial documents shows he has a
balance of $222.62 in his institutional accounts.
See Appl. [Doc. No. 2], at 2-3. Thus, the Court
finds that Petitioner is financially able to prepay the $5.00
filing fee of this proceeding. Because Petitioner has not
shown that he qualifies for authorization to proceed without
prepayment of the filing fee, it is recommended that
Petitioner's application be denied. See 28
U.S.C. § 1915(a)(1); see also Lister v. Department
of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).
further recommended that if Petitioner does not pay the $5.00
filing fee in full to the Clerk of the Court within
twenty-one days of any order adopting this Report and
Recommendation, that this action be dismissed without
prejudice to refiling, pursuant to LCvR 3.3(e).
OF RIGHT TO OBJECT
is advised of his right to object to this Report and
Recommendation. See 28 U.S.C. § 636 and
Fed.R.Civ.P. 72. Any such objection must be filed with the
Clerk of the Court on or before August 27, 2019. Petitioner
is further advised that failure to make timely objection to
this Report and Recommendation waives his right to appellate
review of the factual and legal issues addressed herein.
See Moore v. United States, 950 F.2d 656, 659 (10th
 Petitioner named as Joe M. Allbaugh
and Mark Knutson defendants. Because this action is construed
as one brought under Section 2241, the proper respondent in
this action is Jimmy Martin, the current warden of North Fork
Correctional Center. Accordingly, Jimmy Martin is hereby
substituted as the proper respondent in this action.
See Rule 2(a), Rules Governing Section 2254 Cases in
the United States District Court; see also Fed. R.
Civ. P. 25. The Clerk of Court shall note the substitution on
 That Petitioner's claim is
cognizable under Section 2241 does not necessarily equate to
stating a federal constitutional violation. See
Bridenstine, 2017 WL 4545210, at ...