Embrey v. Warren et al

Filing 27

ORDER by Chief Judge Daniel L. Hovland ADOPTING 24 REPORT AND RECOMMENDATION and dismissing complaint without prejudice; denying 13 Motion Requesting Issuance of Summons; denying 15 Motion for Hearing; denying 18 Motion for Court to take Judicial Notice; denying 21 Motion to Consolidate; and denying 26 Motion to Compel.(MM) Distributed on 6/21/2017 (cjs).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
William J.R. Embrey,

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Plaintiff,
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ORDER ADOPTING REPORT
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AND RECOMMENDATION
vs.
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Case No. 3:17-cv-033
Wade H. Warren, Chief U.S. Probation
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Officer; Chris Ambuehl, U.S. Probation
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Officer; and the U.S. Probation Department )
at Fargo,
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Defendants.
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______________________________________________________________________________
The Plaintiff, an inmate at the incarcerated in the federal correctional facility located in
Ashland, Kentucky, initiated this pro se civil rights action on February 13, 2017. See Docket No.
1. After screening the amended complaint as required by 28 U.S.C. § 1915A, Magistrate Judge
Charles S. Miller, Jr. issued a Report and Recommendation on June 5, 2017, in which he
recommended that the complaint be dismissed and the outstanding motions be denied. See Docket
No. 24.

The parties were given fourteen days to file any objections to the Report and

Recommendation. The Plaintiff filed an objection to the report and recommendation on June 15,
2017. See Docket No. 25.
The Court has carefully reviewed the Report and Recommendation, relevant case law, the
Plaintiff’s objection, and the entire record, and finds the Report and Recommendation to be
persuasive. The Court finds the Plaintiff’s objection to Judge Miller’s Report and Recommendation
unpersuasive. The Plaintiff fails to state any cognizable claims under 42 U.S.C. § 1983. The Court’s
ruling in In re: William J.R. Embrey, No. 1:17-mc-003 (Docket. No. 5) that it will not consent to a
transfer of jurisdiction over the Plaintiff’s supervised release moots any claims against the probation

office and its officers. In making that ruling the Court found that “any prior communications of the
United States Probation Office on its behalf, are limited to the withholding of consent to the transfer
of jurisdiction and supervision pursuant to 18 U.S.C. § 3605.” As Judge Miller noted, any other prerelease or supervision questions are matters for the BOP and the Western District of Missouri to
decide. In addition, amending the complaint would not cure the deficiencies noted by Judge Miller
in his Report and Recommendation.
Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 24) in its
entirety and ORDERS as follows:
1.

The Plaintiff’s complaint at Docket No. 6 and its supplements at Docket. Nos. 9, 11,
and 17 are DISMISSED WITHOUT PREJUDICE pursuant to 18 U.S.C. §
1915A(b)(1) for failure to state a claim upon which relief can be granted.

2.

The Plaintiff’s outstanding motions at Docket. Nos. 13, 15, 18, 21, and 26 are
DENIED as moot.

IT IS SO ORDERED.
Dated this 21st day of June, 2017.
/s/ Daniel L. Hovland
Daniel L. Hovland, Chief Judge
United States District Court

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