Burton v. McGlasson

Filing 9

ORDER DENYING PETITIONERS MOTION FOR APPOINTMENT OF COUNSEL [#7]. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BOBBY E. BURTON, JR.,
Petitioner,
Case No. 14-cv-10693
Honorable Gershwin A. Drain
v.

PROVIDER MCGLASSON,
Respondent.
/
ORDER DENYING PETITIONER’S MOTION
FOR APPOINTMENT OF COUNSEL [#7]
On April 2, 2014, Bobby E. Burton (“Petitioner”) filed this Motion for Appointment of
Counsel. See Dkt. No. 7. Upon reviewing Petitioner’s request, the Court will DENY Petitioner’s
Motion. The Court summarily dismissed Petitioner’s Petition for a Writ of Habeas Corpus on
February 24, 2014 because Petitioner was challenging the conditions of his confinement. See
Dkt. No. 4 at 1. A review of the docket reveals that Petitioner has failed to file a Notice of
Appeal.
As previously noted by this Court, Petitioner’s habeas petition was dismissed because it
focused on the denial of medications for an unspecified medical condition, and did not “ ‘relate
to the legality of the petitioner’s confinement, nor . . . to the legal sufficiency of the criminal
court proceedings which resulted in the incarceration of the petitioner.’ ” See Dkt. No. 2 (quoting
Lutz v. Hemingway, 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007)); see also id. at 3 (quoting
Hodges v. Bell, 170 Fed. App’x 389, 393 (6th Cir. 2006), to conclude: “Because petitioner
challenges only the conditions of his confinement, his claims ‘fall outside of the cognizable core
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of habeas corpus relief.’ ”).

Because Petitioner’s habeas petition dealt with his conditions of

confinement, the Court noted that an inmate like Petitioner should “bring his medical
indifference claim as a civil rights complaint.” Id. at 3 (citing Glaus v. Anderson, 408 F.3d 382,
287 (N.D. Ohio 2008).
The Court specifically noted that it did not have the authority to convert Petitioner’s
habeas petition into a civil rights lawsuit. See id. at 4-5 (citing Richmond v. Scibana, 387 F.3d
602, 606 (7th Cir. 2004); Martin v. Overton, 391 F.3d 710, 713 (6th Cir. 2004)). Moreover, the
Court noted that even if it had such authority, the Court would decline to use it “because venue
for any such lawsuit would be improper in this district because petitioner alleges that he is being
denied medications while incarcerated in Texas.” Id. at 5.1
Because Petitioner has not filed a Notice of Appeal, there is no active case in this Court,
and this would be the improper venue for Petitioner’s civil rights action; Petitioner’s Motion for
Appointment of Counsel is DENIED.
SO ORDERED.
Dated: December 9, 2014
/s/Gershwin A Drain
Hon. Gershwin A. Drain
United States District Court Judge

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Petitioner is imprisoned in the United States District Court for Eastern Texas, Tyler Division. See Wehmhoefer v.
Quarterman, No. 3:07-cv-2185-B, 2008 WL 533996, * 2 (N.D. Tex. Feb. 27, 2008).

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