Wedington v. Former Jailor- B. Jett et al
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE; overruling Wedington's Objections to the R&R 7 , and adopting the Report and Recommendation of the Magistrate Judge 6 . (Written Opinion). Signed by Chief Judge John R. Tunheim on 10/03/2017. (JMK) cc: Calvin Scott Wedington. Modified text on 10/3/2017 (lmb).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CALVIN SCOTT WEDINGTON,
Civil No. 17-1024 (JRT/FLN)
JAILOR LARIVA and FORMER
JAILOR B. JETT,
AND ORDER ADOPTING REPORT
AND RECOMMENDATION OF
Calvin Scott Wedington, No. 18915-037, FMC Devens, P.O. Box 879,
Ayer, MA 01432, pro se petitioner.
Erin M. Secord, UNITED STATES ATTORNEY’S OFFICE, 300 South
Fourth Street, Suite 600, Minneapolis, MN 55415, for respondents.
On April 3, 2017, Petitioner Calvin Scott Wedington, currently a federal prisoner,
filed a habeas petition pursuant to 28 U.S.C. § 2241, containing allegations of medical
malpractice and mistreatment while in custody at a previous location. (Pet. for Writ of
Habeas Corpus at 2-3, Apr. 3, 2017, Docket No. 1.) On May 31, 2017, United States
Magistrate Judge Franklin L. Noel issued a Report and Recommendation (“R&R”)
recommending dismissal of the petition. (R&R, May 31, 2017, Docket No. 6.) The
Magistrate Judge reasoned that Wedington’s action seeks to challenge his conditions of
confinement, rather than the fact or duration of confinement, and thus, this action must be
brought in a civil-rights complaint instead of a habeas petition. (Id. at 1 (citing Spencer
v. Haynes, 774 F.3d 467, 470-71 (8th Cir. 2014)).) The Magistrate Judge had previously
informed Wedington of this fact and provided him an opportunity to pay the filing fee
associated with a civil-rights complaint – in light of Wedington’s previous three strikes
under 28 U.S.C. § 1915(g) and the fact that he did not allege he was in imminent danger
of serious physical injury. (Id. at 1-2.) Wedington failed to pay the filing fee, and the
Magistrate Judge recommended dismissal of Wedington’s action without prejudice under
Fed. R. Civ. P. 41(b) for failure to prosecute. (Id. at 2.) On June 12, 2017, Wedington
filed objections to the R&R. (Objs. to R&R, June 12, 2017, Docket No. 7.)
The Court reviews “properly objected to” portions of an R&R de novo. Fed. R.
Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3). Wedington objects to the Magistrate
Judge’s recommendation that the Court finds he must bring his current action in a civilrights complaint, stating that a habeas petition “is the only way to bring [an] inhumane
conditions” action against the defendants. 1 (Objs. to R&R at 1.) This is incorrect. As
discussed by the Magistrate Judge, a petitioner may bring a habeas petition only to
challenge “the validity of his conviction or the length of his detention” and not for the
conditions of confinement. Spencer, 774 F.3d at 469-70 (quoting Kruger v. Erickson, 77
F.3d 1071, 1073 (8th Cir. 1996) (per curiam)). Actions seeking to challenge conditions of
confinement are brought through civil-rights complaints under 42 U.S.C. § 1983 or
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
One statement in Wedington’s objections could be construed as challenging his
conviction rather than his conditions, (Objs. to R&R at 1 (stating he “is being held unlawfully
without a violation on an old charge”)), but he does not point to anything in his habeas petition
aimed at challenging his conviction. Further, as discussed above, the rest of his objections
confirm that he is attempting to challenge his conditions of confinement.
See Spencer, 774 F.3d at 471 (discussing transforming habeas petitions
challenging conditions of confinement into Bivens or § 1983 claims).
Crucially, Wedington’s objections do not call into question the Magistrate Judge’s
conclusion that he is challenging the conditions of confinement and that he does not
clearly state any imminent threat of “serious physical injury” sufficient to avoid the filing
fee for maintaining another civil-rights action.
28 U.S.C. § 1915(g); (R&R at 2).
Accordingly, the Court will overrule Wedington’s objections, adopt the R&R, and
dismiss Wedington’s petition without prejudice.
Finally, the Court may grant a certificate of appealability only where a petitioner
“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The petitioner must show that “the issues are debatable among reasonable
jurists, a court could resolve the issues differently, or the issues deserve further
proceedings.” Flieger v. Delo, 16 F.3d 878, 883 (8th Cir. 1994); see also Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). For purposes of appeal under § 2253, the Court
finds that Wedington has not shown that reasonable jurists would find the issues raised in
his habeas petition debatable, that some other court would resolve the issues differently,
or that the issues deserve further proceedings. Therefore, the Court declines to grant a
certificate of appealability.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
The Court OVERRULES Wedington’s Objections to the R&R [Docket
No. 7], and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket
Wedington’s action is DISMISSED WITHOUT PREJUDICE.
For the purpose of appeal, the Court does not grant a certificate of
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: October 3, 2017
at Minneapolis, Minnesota.
________s/John R. Tunheim_______
JOHN R. TUNHEIM
United States District Court
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