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Case 1:13-cv-02001-BNB Document 5 Filed 09/17/13 USDC Colorado Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02001-BNB

ERIC ADAMS,

Applicant,

v.

D. BERKEBILE, Warden,

Respondent.

ORDER

Plaintiff, Eric Adams, is in the custody of the United States Bureau of Prisons and

currently is incarcerated at ADX in Florence, Colorado. Originally, Mr. Adams, acting

pro se, initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant

to 28 U.S.C. § 2241 and paying the $5 filing fee.

In an order entered on July 31, 2013, the Court found that Mr. Adams is asserting

conditions of confinement claims rather than habeas corpus claims in this action. The

Court construed the action as filed pursuant to Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and instructed Mr. Adams to submit his

claims on a Court-approved form used in filing prisoner complaints. Mr. Adams also

was instructed to submit to the Court a Prisoner’s Motion and Affidavit for Leave to

Proceed Pursuant to 28 U.S.C. § 1915 and a certified copy of his inmate trust fund

account statement for the six months prior to the filing of the instant action, if he desired

to proceed in forma pauperis. Otherwise, he was directed to pay the remaining $395.00

balance of the $400 filing fee in full.

Case 1:13-cv-02001-BNB Document 5 Filed 09/17/13 USDC Colorado Page 2 of 3

Rather than comply with the July 31 Order, Mr. Adams filed a “Motion Pursuant

to Fed. R. Civ. P. Rule 54(b),” ECF No. 4.

In the Application, Mr. Adams claims that he was given a bag meal for five days

in violation of Program Statement 4700.06. As relief, Mr. Adams seeks an extra meal

for five days, or in the alternative thirty honey buns. In the Rule 54(b) Motion, Mr.

Adams contends that because he is filing this action against BOP staff in their official

capacities the action is construed as filed against the United States and properly is filed

under § 2241.

Nothing Mr. Adams asserts in the Rule 54(b) Motion supports a finding that the

alleged violation of PS 4700.06 is properly filed in a § 2241 action. Even though a claim

for injunctive relief alone may not be filed pursuant to Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Mr. Adams may pursue his

claims challenging any alleged constitutionality of the program statements and related

requests for injunctive relief in a civil rights action under 28 U.S.C. § 1331. See Simmat

v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231–32, 1236 (10th Cir. 2005) (stating that

28 U.S.C. § 1331 is a sufficient statutory basis for equity jurisdiction over federal

prisoner's constitutional claims seeking injunctive relief against federal actors

concerning conditions of confinement). The Court, therefore, will deny the Rule 54(b)

Motion. Accordingly, it is

ORDERED that the Motion Pursuant to Fed. R. Civ. P. Rule 54(b), ECF No. 4, is

denied. It is

FURTHER ORDERED that Mr. Adams shall have thirty days from the date of this

Order to comply with the July 31, 2013 Order. It is

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Case 1:13-cv-02001-BNB Document 5 Filed 09/17/13 USDC Colorado Page 3 of 3

FURTHER ORDERED that if Mr. Adams fails to comply within the time allowed

the action will be dismissed without further notice.

DATED September 17, 2013, at Denver, Colorado.

BY THE COURT:

s/ Boyd N. Boland
United States Magistrate Judge

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