RUTH v. DEAL

Filing 19

ORDER VACATING 18 Order of Transfer; ORDER OF TRANSFER transferring proceedings to the U.S. District Court for the Southern District of Georgia, Statesboro Division. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 2/2/18. (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DERRELL RUTH,
Petitioner,
VS.
Warden DEAL,

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CIVIL NO. 5:17-CV-459-CAR-MSH

Respondent.
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ORDER
Presently pending before the Court are the pleadings of pro se Petitioner Derrell
Ruth, an inmate currently confined at the Ware State Prison in Waycross, Georgia. On
February 1, 2018, the Court entered a document in this case transferring Petitioner’s claims
to the Southern District of Georgia (ECF No. 18). Although the language of the document
indicates that the Court intended for the document to be an order, the document was
incorrectly titled as a “Recommendation.” To avoid any potential confusion, the Court
VACATES the document filed at ECF No. 18 and enters the following Order.
Petitioner originally filed a document that was construed as a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1). In accordance with the Court’s
previous order, Petitioner has now recast his petition on the Court’s standard form (ECF
No. 11) and moved for leave to proceed in forma pauperis (ECF Nos. 4, 12) and for
appointed counsel (ECF Nos. 6, 13).
Upon reviewing Petitioner’s recast petition and other documents filed after his

original Petition, it is unclear whether Petitioner actually intends to file a federal petition
for writ of habeas corpus or a complaint seeking relief pursuant to 42 U.S.C. § 1983.
Although Petitioner completed the Court’s standard § 2254 form in accordance with the
Court’s December 21, 2017 Order, Petitioner alleges therein claims for deliberate
indifference and cruel and unusual punishment, complains about his conditions of
confinement, and asserts an equal protection violation. See 2d Suppl. Pet. 5-10, ECF No.
11. Petitioner also requests only monetary damages, which are not available in a habeas
corpus action. Id. at 15; see Heck v. Humphrey, 512 U.S. 477, 481 (1994). On the other
hand, Petitioner requested habeas corpus relief in his initial Petition, and he confirmed in a
response to the Court’s December 21, 2017 Order that he “received the Petition for 28 USC
2254 and wishes to proceed as such.” Resp. 1, ECF No. 9. The Court will therefore
continue to construe this action as a proceeding under 28 U.S.C. § 2254.
A state prisoner may file a habeas petition in the district where the prisoner was
convicted or in the district where the prisoner is confined. 28 U.S.C. § 2241(d). The
Court where the petition is filed may transfer it to the other appropriate district “in
furtherance of justice.” Id. It is the long-standing policy of the Georgia district courts “to
transfer habeas petitions filed in the district where the prisoner is confined to the district
where the petitioner was convicted.” Eagle v. Linahan, 279 F.3d 926, 933 n.9 (11th Cir.
2001). Petitioner was convicted in the Superior Court of Toombs County, Georgia. 2d
Suppl. Pet. 1, ECF No. 11. Toombs County is in the Statesboro Division of the Southern
District of Georgia. 28 U.S.C. § 90(c)(6). Accordingly, it is ORDERED that this action
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and all pending motions be TRANSFERRED to the Statesboro Division of the United
States District Court for the Southern District of Georgia.1
SO ORDERED, this 2nd day of February, 2018.

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S/ C. Ashley Royal 
C. ASHLEY ROYAL, SENIOR JUDGE 
UNITED STATES DISTRICT COURT 

Whether Petitioner’s pleadings are construed as containing federal habeas corpus claims
or claims under § 1983, the appropriate venue for his claims is the Southern District of
Georgia. To the extent Petitioner is raising § 1983 claims, they concern his treatment at
the Ware State Prison in Ware County, Georgia, which is located in the Waycross Division
of the Southern District of Georgia. See 28 U.S.C. § 1391(b); 28 U.S.C. § 90(c)(4).
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