United States District Court, D. North Dakota
ORDER OF DISMISSAL
CHARLES S. MILLER, JR., MAGISTRATE JUDGE
petitioner, Scott Roman Parizek, is an inmate at the North
Dakota State Penitentiary. He initiated the above-entitled
action pro se and in forma pauperis
late May 2018. He filed a notice of his consent to the
undersigned's exercise of jurisdiction on June 7, 2018.
On June 15, 2018, he filed a supplement/second petition. For
the reasons, set for the below this action is dismissed
31, 2018, Parizek filed a "Petition Under 28 U.S.C.
§ 2254 for a Writ of Habeas Corpus by a Person in State
Custody." Although styled as a petition for habeas
corpus relief, he is not challenging the validity of his
conviction or sentence in state district court. Rather, he
takes issue with his medical treatment or lack thereof while
in custody at the Ward County Jail. Specifically, he claims:
Ground One: Medical Malpractice
I went to CMS on October/22/2016 and I was jailed on
Nov/2/2016 to Nov/22/206. On Nov/22/2016 I was rushed to
trinty. I was denied Methadone and my heart pills for 20
days. On Nov/22/2016 my heart ills of 22 years were doubled.
My aorta aniorisum got bigger. I went through ungodly
withdrawals, my MAT American Disability . . . rights were
violated, I contacted the DOJ.
Ground Two: I was denied methadone every Sunday while in
custody at Ward County Nov/14/2017 - March/4/2018
There wasn't a nurse on that day to give me my medication
was the excuse but I went through withdraws so badly with a
sever heart condition I plead out my civil rights were
(Doc. No. 2) (errors in original). In his prayer for relief,
he asked to either be paroled to the "Fargo center"
15, 2018, Parizek filed a second petition asserting three
grounds for relief: (1) "American Disability Act under
the MAT/medical malpractice;" (2) "Denied heart
pills for 14 days while methadone was also denied;" and
(3) "Denial of methadone every Sunday from
Nov/14/2018-March/2018." (Doc. No. 6).
essence of habeas corpus is an attack by a person in custody
upon the legality of that custody." Kruger v.
Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996) (citing
Preiser v. Rodriguez, 411 U.S. 47 (1973)). "If
the prisoner is not challenging the validity of his
conviction or the length of his detention, such as loss of
good time, then a writ of habeas corpus is not the proper
remedy." Id. "It is the substance of the
relief sought which counts." Id. "Where
petitioner seeks a writ of habeas corpus and fails to attack
the validity of his sentence or the length of his state
custody, the district court lacks the power or subject matter
jurisdiction to issue a writ." Id.
Parizek is not directly challenging the fact or duration of
his confinement. Rather, he is claiming that he was denied
access to medical treatment/medication while confined at a
county jail in violation of his civil rights. Such claims are
not cognizable under the guise of habeas action. See
Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996)
(delineating some of the fundamental differences between a
civil rights action under 42 U.S.C. § 1983 and a habeas
action under 28 U.S.C. § 2254). Because Parizek is not
challenging the validity of his conviction or sentence, the
above-entitled action is subject to dismissal for lack of
jurisdiction. Id.; see also Otey v. Hopkins, 5 F.3d
1125, 1130 (8th Cir. 1993) (citing 28 U.SC. § 2254 for
the proposition that "Federal courts have jurisdiction
to entertain an application for a writ of habeas corpus ...
only on the ground that [the petitioner] is in custody in
violation of the Constitution or laws or treaties of the
United States." (internal quotation marks omitted)).
different circumstances the court could construe the petition
as a Complaint and proceed accordingly upon Parizek's
submission of the paperwork necessary to assess the $350.00
filing fee for civil rights actions. However, there is a
problem with Parizek's pleadings: the Ward County Jail,
the named defendant, is not amenable to suit under 42 U.S.C.
§ 1983. See De La Garza v. Kandiyohi County Jail,
Corr. Inst., No. 01-1966, 2001 WL 987542, at *1 (8th
Cir. Aug. 30, 2001) (unpublished per curiam opinion)
(affirming the district court's dismissal of an
inmate's suit against a county jail and county
sheriff's department); see also Barnes v. Cuyahoga
County Jail, No. 1:09CV2671, 2010 WL 148136, at *1 (N.D.
Ohio Jan. 12, 2010) ("In order to state a claim under
§ 1983, the plaintiff must show that the alleged
violation was committed by a person acting under color of
state law. A jail is a building wherein prisoners are held
and is not a person. Therefore, a jail is not a legal entity
amenable to suit under 42 U.S.C. § 1983." (internal
citations omitted)); Arwood v. Bradley County Jail,
No. 1:07-cv-156, 2007 WL 3120866, at * 2 (E.D. Tenn. Oct. 23,
2007) ("The Jail is not a municipality, but rather, a
building in the county and, as such, is not a separate legal
entity which can be sued. Therefore, the Jail is not a
‘person' within the meaning of § 1983.");
Powell v. Cook County Jail, 814 F.Supp. 757, 758
(N.D. Ill. 1993) ("Section 1983 imposes liability on any
‘person' who violates someone's constitutional
rights ‘under color of law.' Cook County Jail is
not a ‘person'-it is not a legal entity to begin
with."); McCoy v. Chesapeake Correctional
Center, 788 ...