Oglesbee v. USA

Filing 47

ORDER denying 35 Motion for Assistance Concerning Misconduct of Staff at Tucson, Arizona; denying 36 Motion for Court Assistance Concerning Staff Misconduct at Tucson Penitentiary; denying 37 Motion to Compel Tucson USP to Give Me All of My Legal Materials; denying 38 Motion for the Court to Grant Me Due Process at Tucson Penitentiary; denying 45 Motion Concerning Questions about the Staff at Lee County; denying 46 Motion to Appoint Adequate Counsel. Signed by District Judge Martin Reidinger on 6/21/2010. (Pro se litigant served by US Mail.)(pdf)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA BRYSON CITY DIVISION C IV IL CASE NO. 2:07cv23 [C rim in a l Case No. 2:04cr38]

L O N N IE MACK OGLESBEE,

) ) P l a i n t if f , ) ) vs . ) ) U N IT E D STATES OF AMERICA, ) ) D e fen d a n t. ) )

ORDER

TH IS MATTER is before the Court on the Petitioner's pro se Motion fo r Assistance Concerning Misconduct of Staff at Tucson, Arizona [Doc. 3 5 ]; Motion for Court Assistance Concerning Staff Misconduct at Tucson P e n ite n tia ry [Doc. 36]; Motion for the Court to Compel Tucson USP to Give M e All of My Legal Materials [Doc. 37]; Motion for the Court to Grant Me D u e Process at Tucson Penitentiary [Doc. 38]; numerous submissions wh ic h are not formal motions [Docs. 39, 40, 41, 42 and 43]; Motion to the C o u rt Concerning Questions about the Staff at Lee County [Doc. 45]; and M o tio n for Appointment of Adequate Counsel [Doc. 46]. 1

T h e Petitioner filed a motion pursuant to 28 U.S.C. §2255 on October 1 9 , 2007. [Doc. 1]. That motion remains pending. In an obvious attempt to g e t the attention of the Court, the Petitioner has taken to making serial filin g s such as those at hand and those disposed of by Order entered May 1 7 , 2010. [Doc. 44]. T h e Petitioner complains variously that a Native American inmate has b e e n killed, he is concerned for his own safety and staff of the Bureau of P ris o n s (BOP) are involved in the death. [Doc. 35; Doc. 36]. He alleges th a t he has been denied access to his legal materials and the law library. [D o c . 37]. At the same time, the Petitioner does not want to be transferred to a different facility. [Doc. 38]. The Petitioner has included copies of le tte rs written by him to BOP authorities. In other filings, he acknowledges th a t he has, in fact, received his legal materials. [Doc. 39-1]. He n o n e th e le s s complains that the food he is being served is tainted and that th e toilet in his cell does not flush properly. [Doc 40]. Other filings show that the Petitioner has made formal complaints with the BOP which has processed the same. [Doc. 43-1, Doc. 43-2]. The P e titio n e r does not agree with the BOP decisions but has not taken the a p p ro p ria te steps to seek review of the same. [Doc. 43-3]. Filings

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s u b m itte d by the Petitioner show that when he has complained about s a fe ty issues, he has been placed in protective custody but also show that h e has refused direct orders. [Doc. 43-4]. In a more recent filing, the Petitioner claims that he gave his motions to the BOP staff for mailing to this Court but has not gotten back copies of th o s e filings. [Doc. 45]. Finally, he seeks court-appointed counsel to make s u re that he receives copies of the documents he sends to this Court for filin g and to help him with his "legal concerns." [Doc. 46]. T o the extent that the Petitioner complains about the conditions of his c o n fin e m e n t in Arizona, he must exhaust all administrative remedies a va ila b le through the BOP before seeking court intervention. Porter v. N u s s le , 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (discussing P ris o n Litigation Reform Act); Anderson v. XYZ Correctional Health S e rv ic e s , Inc., 407 F.3d 674 (4 th Cir. 2005). Moreover, the Petitioner's c o m p la in ts about the conditions of his confinement are not properly raised in the context of a motion to vacate, set aside or correct sentence. Id.; M u h a m m a d v. Close,540 U.S. 749, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004). T o the extent that the Petitioner complains about the execution of his s e n te n c e , "[w]henever a [] habeas petitioner seeks to challenge his present

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p h ys ic a l custody within the United States, he should name his warden as re s p o n d e n t and file the petition in the district of confinement." Rumsfeld v. P a d illa , 542 U.S. 426, 447, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004); United S ta te s v. Hinton, 347 Fed.Appx. 885 (4 th Cir. 2009); United States v. Poole, 5 3 1 F.3d 263, 273-74 (4 th Cir. 2008) (court that originally sentenced p e titio n e r did not have jurisdiction over habeas petition); United States v. L ittle , 392 F.3d 671, 680 (4 th Cir. 2004), modified on other grounds United S ta te s v. Urutyan, 564 F.3d 679 (4 th Cir. 2009); Willis v. United States, 2 0 0 9 WL 3150301 (W.D.N.C. 2009), affirmed 2010 WL 675554 (4 th Cir. 2 0 1 0 ). B y Order entered May 17, 2010, the Petitioner was warned against m a k in g frivolous filings. It appears that these motions were filed prior to re c e ip t by the Petitioner of that Order. However, the Petitioner is hereby p la c e d on notice that the Court will not entertain frivolous filings. Prisoners d o not have an absolute and unconditional right of access to the courts in o rd e r to prosecute frivolous, malicious, abusive or vexatious motions. Demos v. Keating, 33 Fed.Appx. 918 (10 th Cir. 2002); Tinker v. Hanks, 255 F .3 d 444, 445 (7 th Cir. 2001), certiorari denied 535 U.S. 956, 122 S.Ct. 1 3 6 2 , 152 L.Ed.2d 357 (2002); In re Vincent, 105 F.3d 943 (4 th Cir. 1997).

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D is tric t courts have inherent power to control the judicial process and to r e d r e s s conduct which abuses that process. Silvestri v. General Motors C o rp ., 271 F.3d 583, 590 (4 th Cir. 2001) (citation omitted). "It is welle s ta b lis h e d law in this circuit that a district court may establish a system of `p re -filin g review of complaints brought by prisoners with a history of litig io u s n e s s .'" In re Burnley, 988 F.2d 1, 3 (4 th Cir. 1992) (citation omitted). T h e Defendant is hereby warned that future frivolous filings will result in the imposition of a pre-filing review system. Cromer v. Kraft Foods North A m e ric a , Inc., 390 F.3d 812 (4 th Cir. 2004); Vestal v. Clinton, 106 F.3d 553 (4 th Cir. 1997). If such a system is placed in effect, pleadings presented to th e Court which are not made in good faith and which do not contain s u b s ta n c e , will be summarily dismissed as frivolous. Foley v. Fix, 106 F.3d 5 5 6 (4 th Cir. 1997); In re Joseph Marion Head, 19 F.3d 1429 (4th Cir. 1 9 9 4 ), certiorari denied 513 U.S. 999, 115 S.Ct. 508, 130 L.Ed.2d 416 ( 1 9 9 4 ) . Thereafter, if such writings persist, the pre-filing system may be m o d ifie d to include an injunction from filings. See, 28 U.S.C. §1651(a); In r e Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984).

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IT IS, THEREFORE, ORDERED that the Petitioner's pro se Motion fo r Assistance Concerning Misconduct of Staff at Tucson, Arizona [Doc. 3 5 ]; Motion for Court Assistance Concerning Staff Misconduct at Tucson P e n ite n tia ry [Doc. 36]; Motion for the Court to Compel Tucson USP to Give M e All of My Legal Materials [Doc. 37]; Motion for the Court to Grant Me D u e Process at Tucson Penitentiary [Doc. 38]; Motion to the Court C o n c e rn in g Questions about the Staff at Lee County [Doc. 45] and Motion fo r Appointment of Adequate Counsel are hereby DENIED.
Signed: June 21, 2010

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