Spears v. Warden FCI Williamsburg

Filing 27

ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts in part and declines to adopt in part the Report (ECF No. 17 ), and recommits the matter to the Magistrate Judge for further handling. Signed by Honorable Timothy M Cain on 05/20/2016. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
James A. Spears,
Petitioner,
v.
Warden FCI Williamsburg,
Respondent.

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C/A No. 5:16-671-TMC
OPINION & ORDER

This matter is before the court on Petitioner’s Petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), D.S.C.,
all pre-trial proceedings were referred to a magistrate judge. On April 25, 2016, Magistrate Judge
Kaymani D. West filed a Report and Recommendation (‘Report”), recommending Petitioner’s
Petition be dismissed without prejudice. (ECF No. 17). Petitioner timely filed objections to the
Report on May 11, 2016. (ECF No. 22).
The Magistrate Judge makes only a recommendation to the court. The Report has no
presumptive weight and the responsibility to make a final determination in this matter remains
with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In making that
determination, the court is charged with conducting a de novo review of those portions of the
Report to which either party specifically objects. See 28 U.S.C. § 636(b)(1). Then, the court may
accept, reject, or modify the Report or recommit the matter to the magistrate judge. Id.
Before the court addresses the merits of Petitioner’s objections, the court must address the
profanity and abusive language contained in his objections. While Petitioner may be frustrated,
this is no excuse for malicious and abusive comments, and the court will not tolerate them. “Due
to the very nature of the court as an institution, it must and does have an inherent power to impose

order, respect, decorum, silence, and compliance with lawful mandates. This power is organic,
without need of a statute or rule for its definition, and it is necessary to the exercise of all other
powers.” United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993). Although
recognizing the leniency typically accorded to pro se parties, “ ‘[t]his court simply will not allow
liberal pleading rules and pro se practice to be a vehicle for abusive documents. Our pro se
practice is a shield against the technical requirements of a past age; it is not a sword with which to
insult a trial judge.’ ” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir.
2005) (citing Theriault v. Silber, 579 F.2d 302, 303(5th Cir. 1978)).
Rule 11 of the Federal Rules of Civil Procedure provides that
[b]y presenting to the court a pleading, written motion, or other paper . . . an
unrepresented party certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances [that] it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of litigation.
Fed.R.Civ.P. 11(b). The court considers the profanity and abusive language used by Petitioner in
his Objections to be harassment and sanctionable under Rule 11. In order to impose sanctions sua
sponte under Rule11, a party must be given notice that sanctions are being considered.
Fed.R.Civ.P. 11(c)(1)(B). Sanctions can include striking the offensive pleadings or motions or
dismissing the action. See Phillips v. Carey, 638 F.2d 207, 208 (10th Cir. 1981) (holding that
“[i]f the complaint or other pleadings are abusive or contain offensive language, they may be
stricken sua sponte under the inherent powers of the court.”) (citing Fed.R.Civ.P. 12(f)). See also
Fed.R.Civ.P. 41(b). Accordingly, Petitioner is advised that Rule 11 sanctions will be considered
in the future any time he submits correspondence or pleadings containing offensive, abusive,
and/or threatening language.
In her Report, the magistrate judge reviewed the petition and claims brought therein and
determined that Petitioner did not allege any plausible habeas claim because the relief requested
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would not affect the duration of his sentence. (Report at 4). She recommends that the court
dismiss the habeas petition without prejudice. In his objections, Petitioner contends that he did
not intend to file a habeas petition seeking a change in his sentence. (Objections at 1). He
contends that he filed a § 2241 habeas petition seeking relief for retaliation and harassment by
prison officials. Id.
A § 2241 habeas motion is used to attack the manner in which a sentence is executed. See
28 U.S.C. § 2241. In a § 2241 petition, the petitioner is challenging “the fact or duration of his
physical confinement,” or “seeking immediate release or speedier release from that confinement.”
Preiser v. Rodriguez, 411 U.S. 475, 498 (1973). On the other hand, issues raising the conditions
of confinement should be brought pursuant to Bivens v. Six Unknown Named Agenst of Federal
Bureau of Narcotics, 403 U.S. 388 (1971).
The court notes that Petitioner used the habeas form in filing this action and referred to
this as a habeas action in his filings with the court. (ECF Nos. 1 and 5, and Objections at 1).
However, Petitioner’s § 2241 petition presents a challenge to the conditions, rather than the fact
or duration, of his confinement. Clearly, Petitioner’s claims are not proper in a habeas action and
should be alleged in a Bivens action - as the magistrate judge notes in her Report. (Report at 3-4).
Indeed, Petitioner does not challenge this conclusion in his objections to the Report. He does,
however, object to the dismissal of this action. After review, rather than dismiss the action as
recommended by the magistrate judge, the court finds that Petitioner should be given the
opportunity to bring his claims in a Bivens action. This would require Petitioner to submit his
claims on the proper forms and with the appropriate filing fee.1 Therefore, the court recommits
this matter to the magistrate judge for further handling consistent with this order.

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Petitioner should be given credit for the $5.00 filing fee he has already paid.
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Conclusion
Based on the foregoing, the court adopts in part and declines to adopt in part the Report
(ECF No. 17), and recommits the matter to the Magistrate Judge for further handling.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
May 20, 2016

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