West v. Bradshaw

Filing 82

Order denying petitioner's motion for an injunction to halt his transfer to a different prison pending resolution of this habeas action. (Related Doc # 80 ). Judge Sara Lioi on 1/25/17.(S,HR)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TIMOTHY WEST,
PETITIONER,
vs.
WARDEN BRADSHAW,
RESPONDENT.

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CASE NO. 1:15-cv-203
JUDGE SARA LIOI
ORDER

Before the Court is petitioner’s motion for issuance of an “emergency plenary injunction
to stop the transfer of a prisoner while his petition for federal habeas corpus is pending before a
federal court pursuant to FRAP 23(a).” (Doc. No. 80.) Respondent has opposed the motion.
(Doc. No. 81.)
As properly pointed out by respondent, Fed. R. App. P. 23(a), which provides that
petitioner’s custody cannot be transferred “[p]ending review of a decision in a habeas corpus
proceeding[,]” is inapplicable. The Court currently has under advisement the magistrate judge’s
report and recommendation that the petition should be denied. No decision has been rendered.
See Jones v. Warden, No. 1:14-CV-01218, 2015 WL 7829145, at *3 (S.D. Ohio Dec. 4, 2015)
(citing Caler v. Howes, No. 1:06-cv-172, 2008 WL 191638, at *1 (W.D. Mich. Jan. 22, 2008)
(Rule 23 does not apply because no decision has been made and no appeal is pending)).
Further, any transfer will not divest this Court of subject matter jurisdiction over this
habeas petition, although it may require a substitution of respondent. In addition, the fact that
petitioner may, following transfer, be housed in a different venue will also have no effect. See 28

U.S.C. § 2241(d) (concurrent jurisdiction in district court where prisoner is in custody and
district court for the district wherein petitioner was convicted and sentenced).
Finally, petitioner has no constitutional right to be housed in a particular prison or under a
particular security classification, and prison authorities have broad discretion in making housing
determinations, without interference by courts. Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.
Ct. 1741, 75 L. Ed. 2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 49 L.
Ed. 2d 451 (1976).
Petitioner’s motion for an injunction to halt his transfer to a different prison pending
resolution of this habeas action (Doc. No. 80) is denied.

IT IS SO ORDERED.

Dated: January 25, 2017

HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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