UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

WILLIAM HOLLY, )

 )

Plaintiff, )

)

v. ) No. 3:12 CV 47

)

B. LEMMON, Commissioner, Indiana )

Department of Correction, et al., )

)

Defendants. ) 

OPINION and ORDER

Plaintiff William Holly filed this cause of action pursuant to 42 U.S.C. § 1983, in

the United State District Court for the Southern District of Indiana, while he was a

prisoner confined at the Miami Correctional Facility (“MCF”). That court transferred

Holly’s complaint to this district as the proper venue. In the meantime, Indiana

Department of Correction Officials transferred Holly to the Wabash Valley Correctional 

Facility (“WVCF”). 

In his complaint, Holly sought to prevent his transfer from the MCF to the

WVCF. This court reviewed the complaint pursuant to 28 U.S.C. § 1915A, and

dismissed it as stating no claim upon which relief could be granted. Plaintiff has now

filed a motion to reconsider the dismissal of his complaint.

Holly asserts in his motion to reconsider that before the complaint was

transferred to this court from the Southern District, he filed two motions to amend,

“which this court never addressed before denying the complaint.” (DE # 21 at 1.) But

the record does not reflect that Holly ever filed any amended complaints before his case

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was transferred to this district (DE ## 5, 5-1, 6, 8), and he did not file an amended

complaint after his case was transferred to this district.

Plaintiff did write a letter to the clerk of the United States District Court for the

Southern District, in which he stated that he had “been transferred in violation of Rule

23, Federal Rules of Appellate Procedure + Rule 36, United States Supreme Court.” (DE

# 8 at 2.) But this does not constitute an amended or supplemental complaint.

In his motion to reconsider, Holly alleges that his first amended complaint

“stated that the Plaintiff had a writ pending before the Miami Circuit Court, Holly v.

State, Cause No. 52C01-1106-MI-00240.“ (DE 21 at 1.) FED. R. CIV. P. 23(a) states that:

pending review of a decision in a habeas corpus proceeding commenced

before a court, justice or judge of the United States for release of a prisoner,

the person having custody of the prisoner must not transfer to another unless

a transfer is directed in accordance with this rule.”

(emphasis added). RULE 23 has no application to the habeas petition Holly alleges he

filed in the Miami Circuit Court because the Miami Circuit Court is a state court, not a

court of the United States. Moreover, even if Holly had a habeas petition pending before

a United States District Court, RULE 23 would not apply. See Pethtel v. Attorney Gen. of

Ind., 704 F. Supp. 166, 168 (N.D. Ind. 1989) (“subsection (a) of Rule 23 sets forth the

parameters of that rule and indicates that it applies to the transfer of custody of

prisoners pending review of a decision which has already been entered in a habeas

corpus case”). Because Holly does not allege that he has obtained a decision in a federal

district court which is under review in the Court of Appeals, RULE 23 has no application

to this case. 

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United States Supreme Court RULE 36 provides in pertinent part that:

(1) Pending review in this Court of a decision in a habeas corpus proceeding

commenced before a court, Justice, or judge of the United States, the person

having custody of the prisoner may not transfer custody to another person

unless the transfer is authorized under this Rule.

SUP. CT. RULE 36(1). This rule only applies to cases pending before the United States

Supreme Court for review of habeas petitions filed in lower federal courts. Accordingly,

it has no application to this case. 

Holly also alleges that he had a small claims case in the Miami Superior Court

dealing with loss of property (DE # 20 at 1, DE # 21 at 1) and a petition for postconviction relief pending in the Allen Superior Court (DE # 20 at 2). But neither of these

are federal cases, and neither of them are habeas corpus petitions. 

In his motion to reconsider, Holly alleges that he argued in his second amended

complaint that defendants filed a false claim of dementia before his transfer. He then

asserts that he is “not asking to be simply removed from the administrative segregation

unit, but transferred back to the Miami Correctional Facility, because this transfer

violated Rule 23 + Rule 36.” (DE # 21 at 3.) Accordingly, Holly alleges that both of the

amended complaints he asserts that he filed were based on RULES 23 and 36. 

But, as previously noted, neither of these rules apply here because Holly does not

have a federal habeas petition that is being reviewed either by the Court of Appeals or

the United States Supreme Court. Moreover, even if this were a case to which RULE 23

actually applied, the question of whether Holly’s custodians need to get permission to

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transfer him to another facility is a question that should be raised in the pending habeas

appeal, not in a § 1983 action. 

For the foregoing reasons, the court DENIES plaintiff’s motion for

reconsideration. (DE # 21.) 

SO ORDERED.

Date: August 20, 2012

 s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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