Patton v. Fischer et al

Filing 14

REPORT AND RECOMMENDATIONS re 10 , 2 - Because he has not exhausted available state court remedies, Pattons Petition should be dismissed without prejudice pending such exhaustion. Because reasonable jurists would not disagree with this conclusio n, Petitioner should be denied a certificate of appealability on this Ground for Relief and the Court should certify to the Sixth Circuit that any appeal would not be taken in objective good faith. Objections to R&R due by 6/3/2013. Signed by Magistrate Judge Michael R Merz on 05/15/13. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES PATTON,
:
Petitioner,

Case No. 3:13-cv-050
:

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vsSHERIFF GENE FISCHER, et al.,
:
Respondents.

REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Respondents’ Motion to Dismiss (Doc.
No. 10). The Motion was filed on April 12, 2013, and Petitioner was notified of his obligation to
oppose the Motion not later than May 6, 2013 (Doc. No. 11). As of the date of this Report, no
opposition has been filed.
Petitioner avers that he is a pretrial detainee in Respondents’ custody and complains that
he is being denied personal visits, access to the courts, access to a law library, appropriate living
conditions, reading materials, and recreational activities (Petition, Doc. No. 2, PageID 14-15.)
Since he claims he is constitutionally entitled to these conditions of confinement and they are not
being provided, he asserts a right to immediate release.
The Supreme Court clarified in Preiser v. Rodriquez, 411 U.S. 475 (1973), the
appropriate division of labor between habeas corpus and 42 U.S.C. § 1983 in cases involving
state prisoners: habeas corpus is the appropriate remedy when a prisoner seeks immediate
release (i.e., “when a state prisoner is challenging the very fact or duration of his physical

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imprisonment” Id. at 500); § 1983 is to be used when a prisoner is challenging the conditions of
his confinement. Although Patton does indeed claim that he is entitled to release because of his
conditions of confinement, to obtain habeas relief, he must exhaust the remedies available in the
state courts, including, of course, trial and appeal. His admission that he is a pretrial detainee
precludes him from claiming entitlement to habeas corpus.
Because he has not exhausted available state court remedies, Patton’s Petition should be
dismissed without prejudice pending such exhaustion. Because reasonable jurists would not
disagree with this conclusion, Petitioner should be denied a certificate of appealability on this
Ground for Relief and the Court should certify to the Sixth Circuit that any appeal would not be
taken in objective good faith.
May 15, 2013.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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