Clark v. United States of America

Filing 18

ORDER denying 2 motion for leave to proceed in forma pauperis; adopting 14 Report and Recommendations, petition dismissed without prejudice. (Schroeppel, Kerry)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION JAMES H. CLARK, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) Civil Action ) No. 09-3262-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 assert that he is unlawfully in custody pursuant to 18 U.S.C. 4246. 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. 4246 by an order of the United States District Court for the Middle District of Tennessee.1 Accordingly, the Magistrate correctly found that petitioner's allegations regarding being illegally confined are not properly before this Court, and that any claim It should be noted for the record that petitioner is currently confined at the United States Medical Center for Federal Prisoners. 1 1 he seeks to pursue must be brought in the committing court. 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 24, 2009 2

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