Harpo v. Fulton County Sheriff et al

Filing 5

ORDER adopting the 2 Final Report and Recommendation. IT IS FURTHER ORDERED that Petitioners Petition 1 is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge William S. Duffey, Jr on 9/25/2014. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WILHY HARPO,
1400011173,
Petitioner,
v.

1:14-cv-2157-WSD

CITY OF ATLANTA, ATLANTA
MUNICIPAL COURT, ATLANTA
CITY DETENTION CENTER, and
ATLANTA CITY DETENTION
CENTER CHIEF JAILOR,
Respondents.
WILHY HARPO,
1400011173,
Petitioner,
1:14-cv-2208-WSD

v.
FULTON COUNTY SHERIFF,
FULTON COUNTY JAIL,
FULTON COUNTY SUPERIOR
COURT, FULTON COUNTY
DISTRICT ATTORNEY,
ATLANTA CITY DEPARTMENT
OF CORRECTIONS, ATLANTA
CITY DETENTION CENTER,
A.C.D.C. CHIEF JAILOR,
ATLANTA POLICE OFFICER
JORDAN WOLFORD, and CITY
OF ATLANTA,
Respondents.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge E. Clayton Scofield III’s
Final Report and Recommendation [2] (“R&R”).1
I.

BACKGROUND
Petitioner is a pre-trial detainee in the Atlanta City Detention Center. On

July 7, 20142 and on July 11, 2014,3 Petitioner Wilhy Harpo (“Petitioner”) filed
separate but nearly identical “Emergency and Extraordinary Petition[s] for Writ of
Habeas Corpus & 42 U.S.C. § 1983” (the “Petition”) in the above-captioned cases.
The Petition raises claims for habeas relief pursuant to 28 U.S.C. § 2241 and
claims for monetary damages pursuant to 42 U.S.C. § 1983.4
On July 16, 2014, the Magistrate Judge noted that Petitioner could not raise
§ 2241 claims and § 1983 claims in the same proceeding, and recommended that
the Court dismiss the Petition without prejudice and recommended that no

1

The Magistrate Judge entered the identical R&R in both of the
above-captioned cases.
2
Civil Action No. 1:14-cv-2157-WSD at [1].
3
Civil Action No. 1:14-cv-2208-WSD at [1].
4
When filing his Petition, Petitioner did not pay the filing and administrative
fee required for civil actions and did not file an application to proceed in forma
pauperis. The Magistrate Judge noted that Petitioner has filed numerous
complaints and appeals that have been deemed frivolous and that Petitioner,
currently incarcerated, may be subject to the filing restrictions contained in 28
U.S.C. § 1915(g).
2

certificate of appealability (“COA”) should be issued. Petitioner did not file any
objections to the R&R.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). A district judge “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which a party has not asserted objections, the district judge
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).
B.

Analysis

As Plaintiff has not objected to the Magistrate Judge’s R&R, the Court
reviews the Magistrate Judge’s findings and recommendations for plain error. See
Slay 714 F.2d at 1095.

3

“An inmate convicted and sentenced under state law may seek federal relief
under two primary avenues: ‘a petition for habeas corpus, 28 U.S.C. § 2254, and a
complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42
U.S.C. § 1983.’” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (quoting
Hill v. McDonough, 547 U.S. 573, 579 (2006)). “These avenues are mutually
exclusive . . . .” Id. The Magistrate Judge found that the Petition improperly
raised claims pursuant to both § 2241 and § 1983, and properly recommends that
the Petition be dismissed. See, e.g., id. The Court finds no plain error in these
findings. See Slay, 714 F.2d at 1095.
“A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2).
When a district court has denied a habeas petition on procedural grounds without
reaching the merits of the underlying constitutional claim, the petitioner must show
that (1) “jurists of reason would find it debatable whether the district court was
correct in its procedural ruling,” and that (2) “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right.” Slack v. McDaniel, 529 U.S. at 484 (2000).
The Magistrate Judge recommended that a COA not be issued, finding that
Petitioner failed to meet the standard set forth in Slack. It is not debatable that the

4

Petitioner is not entitled to bring both § 2241 and § 1983 claims in the same
proceeding. See, e.g., Hutcherson, 468 F.3d at 754. The Court finds no plain error
in the Magistrate Judge’s determination that a COA should not be issued. See
Slay, 714 F.2d at 1095.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge E. Clayton Scofield

III’s Final Report and Recommendation [2] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Petition [1] is DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.

SO ORDERED this 25th day of September, 2014.

5