Driggers v. Winn et al

Filing 24

IT IS ORDERED that Magistrate Judge Marshalls Report and Recommendation is ACCEPTED and ADOPTED 22 , IT IS ORDERED that this habeas petition is DISMISSED without prejudice, If Petitioner fails to file an amended complaint on or before June 3, 2011, this action shall be dismissed with prejudice. (See attached PDF for complete details). Signed by Judge David C Bury on 5/4/11. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Paul W. Driggers,

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Petitioner,

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vs.

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Lewis Winn, Warden, et al.,

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Respondents.

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CV-10-317-TUC-DCB
ORDER

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Magistrate Judge Marshall issued her Report and Recommendation on April 15, 2011,

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recommending that the District Court construe the habeas petition as a civil rights action

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pursuant to Bivens and dismiss the action without prejudice with leave to file on the proper

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court-approved form. A copy was sent to all parties on April 15, 2011, notifying all parties

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that written objections must be filed within fourteen days of service. 28 U.S.C. §636(b).

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Petitioner filed an Objection on April 29, 2011.

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After a de novo review of the record and the objection, the Court finds the objection

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meritless. Whether or not Petitioner has previously filed a similar action, but did not obtain

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the relief requested has no bearing on the proper form to obtain judicial review in this action.

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A viable action filed pursuant to 28 U.S.C. §2241 must challenge the manner, location or

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conditions of the execution of the sentence.

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The Court, having made an independent review of the record, orders as follows:

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IT IS ORDERED that Magistrate Judge Marshall’s Report and Recommendation

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(Doc. 22) is ACCEPTED and ADOPTED by this Court as the findings of fact and

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conclusions of law. The motion for summary judgment (Doc. 21) is denied.

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IT IS ORDERED that this habeas petition is DISMISSED without prejudice to refiling

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as improvidently styled as a habeas action rather than a Bivens civil rights action. If

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Petitioner fails to file an amended complaint on or before June 3, 2011, this action shall be

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dismissed with prejudice without further notice to Petitioner for willful noncompliance with

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Court directives.

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DATED this 4th day of May, 2011.

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