Mair v. Anderson et al

Filing 9

ORDER adopting 7 Report and Recommendations, petitioner denied leave to proceed in forma pauperis and petition dismissed without prejudice. (Schroeppel, Kerry)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION SHEROD H. MAIR, Petitioner, v. MARTY C. ANDERSON, Warden, Respondent. ) ) ) Civil Action ) No. 09-3251-CV-S-RED-H ) ) ) ) ORDER Pursuant to the governing law and in accordance with Local Rule 72.1 of the United States District Court for the Western District of Missouri, the petition was referred to the United States Magistrate for preliminary review under the provisions of 28 U.S.C. § 636(b). The United States Magistrate has completed his preliminary review of the petition and has submitted to the undersigned a report and recommendation that the petition be dismissed without prejudice. Petitioner has filed exceptions to the Magistrate's Report and Recommendation, in which he continues to challenge his mental health commitment under 18 U.S.C. § 4243, states that he is a political prisoner who is innocent of the charges, and that he is medically compliant and a model prisoner, who would like to be released from custody. He also requests that his case be transferred to the committing court. Having fully reviewed the record de novo, this Court agrees with the Magistrate's findings that the petition should be dismissed without prejudice. The record indicates that petitioner is lawfully committed pursuant to 18 U.S.C. § 4243 by an order of the United States District Court for

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the Eastern District of North Carolina.

Accordingly, the Magistrate correctly found that

petitioner's allegations regarding being illegally confined are not properly before this Court. To the extent that petitioner seeks a transfer to the Eastern District of North Carolina to challenge his commitment, pursuant to 18 U.S.C. § 4247(h), there is nothing in this Order that would bar his right to pursue the appropriate remedies under that statutory provision in the committing court. Therefore, his request for a transfer of this case to the committing court in North Carolina will be denied. After a full review of the report and recommendation and the files and records in this case, it is concluded that the findings of fact, conclusions of law, and proposed actions of the Magistrate are correct and should be approved. Accordingly, it is ORDERED that petitioner's exceptions should be, and they are hereby, overruled. It is further ORDERED that petitioner should be, and he is hereby, denied leave to proceed in forma pauperis. It is further ADJUDGED that the petition herein should be, and it is hereby, dismissed without prejudice.

/s/ Richard E. Dorr RICHARD E. DORR United States District Judge

Date: November 23, 2009

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