Verner v. Anderson

Filing 23

ORDER AND JUDGMENT adopting Report and Recommendations (Doc. 21); petitioner's exceptions filed herein are CONSIDERED and OVERRULED; petitioner is DENIED leave to proceed in forma pauperis; and, the petition for a writ of habeas corpus is DISMIS SED WITHOUT PREJUDICE. Signed on 09/08/2011 by District Judge Dean Whipple. (Willis, Kathy) Modified on 9/8/2011 (Willis, Kathy). Clerk of the Court shall mail, via certified, return receipt requested, a copy of this Order to petitioner at his last known address.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION JAMES EDWARD VERNER, Petitioner, v. JUAN CASTILLO, Warden, United States Medical Center, Respondent. ) ) ) ) Civil Action No. 10-3384-CV-S-DW-H ) ) ) ) ) ORDER AND JUDGMENT 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 herein for writ of habeas corpus 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 herein for a writ of habeas corpus and has submitted to the undersigned a report and recommendation that the petition for a writ of habeas corpus be dismissed without prejudice. Petitioner has filed written exceptions to the report and recommendation of the Magistrate in which he continues to challenge his housing in administrative segregation. He specifically contends that respondent is not conducting meaningful reviews of his security status because his serious medical condition is not being taken into consideration. He asserts that his pulmonary hypertension has progressed to a point that he is not physically able to pose a risk to other inmates 1 or staff. Having fully reviewed the record de novo, this Court agrees with the Magistrate that the petition should be dismissed because petitioner has failed to state a constitutional violation. Clearly, based on petitioner’s serious violent history, including violence in prison, the Medical Center has acted within its discretion in assigning him to administrative segregation for the safety and security of the institution. It should be noted, moreover, that petitioner is housed at the Medical Center to effectively treat his serious medical condition, and he does not complain about that care. There is nothing in the record to indicate that the due process review process is conducted in violation of petitioner’s rights. The Court agrees with the Magistrate’s conclusion that petitioner has failed to assert a claim that rises to the level of a due process violation. Based on the file 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. It is therefore ORDERED that petitioner's exceptions filed herein be, and they are hereby, CONSIDERED and OVERRULED. It is further ORDERED that petitioner be, and he is hereby, denied leave to proceed in forma pauperis. It is further ADJUDGED that the petition herein for a writ of habeas corpus be, and it is hereby, dismissed without prejudice. /s/ Dean Whipple DEAN WHIPPLE UNITED STATES DISTRICT JUDGE Date: September 8, 2011 2

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