Callahan v. Scarantino

Filing 11

ORDER Re-referring to the Magistrate for further preliminary review and other proceedings consistent with the initial case referral 7 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 5/2/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JAMES CARL CALLAHAN,
Petitioner,
v.
THOMAS J. SCARANTINO,
Warden,
Respondent.

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Case No. CIV-15-1008-D

ORDER
Before the Court is Petitioner James Callahan’s objection to the Magistrate
Judge’s Report and Recommendation (“R & R”), which suggested that his Petition for
Writ of Habeas Corpus be denied. The matter is fully briefed and at issue.
Since Petitioner is a state inmate appearing pro se, the Court is required to
construe his pleadings liberally; however, it does not “assume the role of advocate”
and “should dismiss claims which are supported only by vague and conclusory
allegations.” Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992).
Although some allowance is made for certain deficiencies, such as unfamiliarity with
pleading requirements, failure to cite appropriate legal authority, and confusion of
legal theories, Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005), “the court cannot take on the responsibility of serving as the litigant’s attorney
in constructing arguments and searching the record.” Id. Finally, the Court “will not

supply additional factual allegations to round out a plaintiff’s complaint or construct
a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170,
1173-74 (10th Cir.1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991)).
On September 16, 2015, Petitioner filed a “Petition for Writ of Habeas Corpus
Under 28 U.S.C. § 2241,” stating the matter concerned “Compassionate
Release/Reduction in Sentence, 5050.49 Elderly Inmate.” Pet. at 1 [Doc. No. 1]. For
the factual basis in support of his claim, Petitioner stated:
Warden Thomas J. Scarantino’s show of indifference to the Federal
Bureau of Prison’s Policy on May 12, 2015, subjected me to cruel and
unusual punishment that caused me to suffer a heart attack on May 14,
2015, which has altered my life [expectancy] and violated my rights.
Id. at 4. The matter was referred to Magistrate Judge Gary Purcell for initial
proceedings under 28 U.S.C. § 636(b)(1). Judge Purcell construed the petition as
challenging the warden’s administrative decision in refusing to seek an early release.
R & R at 2. Judge Purcell noted Petitioner’s reference to “5050.49” implicated the
Bureau of Prison’s (BOP) Program Statement 5050.49 governing compassionate
release and/or reduction in sentence procedures. The magistrate noted the
requirements for consideration of a sentence reduction were: (1) a written
recommendation from the warden to the Office of General Counsel, (2) approval by

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the Office of General Counsel, and (3) final decision from the BOP Director. The
Magistrate Judge concluded that since Petitioner had neither asserted, nor did the
record reflect, that the BOP Director had requested an early release/reduction in
sentence based on Petitioner’s medical condition, the court lacked jurisdiction to
consider the merits of his claim. R &R at 4.
Petitioner’s objection states he is not seeking a writ of habeas corpus, but he is
instead challenging the warden’s alleged mishandling of his completed Reduction in
Sentence packet he completed at a previous facility:
As it stands my application to this Honorable Court was filed not for a
Petition for a Writ of Habeas Corpus but [i]nstead the application I filed
was and is for CIVIL Action. This CIVIL ACTION is against FCI
Warden Thomas J. Scarantino ... for the mishandling of my completed
RIS Packet of which they received from FCI Sheridan’s RIS
Coordinator. El Reno did not upload the COMPLETED RIS Packet after
my body arrived here – [i]nstead they conducted [their] own
Compassionate Release review on me – doing so without a Written
Request from me to initiate the Warden’s review[,] [w]hich BOP Policy
clearly states must be done. El Reno ignored this procedure ... [i]nstead
they (El Reno) set out only to deny. Which produc[ed] the heart attack[.]
Petitioner’s Obj. to R & R at 1-2 [Doc. No. 9]. In light of Petitioner’s averments, the
Court concludes it would be inappropriate to dismiss his Petition at this time. Rather,
this matter is re-referred to the magistrate for further preliminary review and other
proceedings consistent with the initial case referral order entered September 16, 2015
[Doc. No. 3].
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IT IS SO ORDERED this 2nd day of May, 2016.

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