Futch v. Mora

Filing 29

ORDER RULING ON REPORT AND RECOMMENDATION 22 . The Petitioners petition is DISMISSED without prejudice and without requiring Respondent to respond. Signed by Honorable R Bryan Harwell on 8/21/2013. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
John Randall Futch, #08700-021,
Petitioner,
v.
Steve Mora, Warden,
Respondent.

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Civil Action No.: 6:13-cv-01328-RBH

ORDER

Petitioner John Randall Futch, a federal prisoner proceeding pro se, filed this petition under
28 U.S.C. § 2241, alleging several claims against Respondent Steve Mora. The matter is now
before the Court for review of the Report and Recommendation (“R&R”) of United States
Magistrate Judge Kevin F. McDonald.1 The Magistrate Judge recommends that this Court dismiss
Petitioner’s petition because his claims either are not cognizable in a § 2241 petition or have already
been raised in an action pending before the Court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner filed a § 2241 petition in May 2013, alleging that Respondent has deprived him of
a right to appeal his administrative remedy. Pet., ECF No. 1. Petitioner later amended his petition,
adding allegations that prison officials illegally placed him in the special housing unit. Am. Pet.
ECF No. 13, 18. The Magistrate Judge issued an R&R on June 20, 2013, recommending that the
petition be dismissed. R&R, ECF No. 22. Petitioner filed timely objections. Pet’r’s Objs., ECF No.
25.

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In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.

STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo
determination of those portions of the R&R to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “ ‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
The Magistrate Judge recommends dismissing Petitioner’s petition because his claims either
are not cognizable in a § 2241 petition or have already been raised in an action pending before the
Court. In his objections, Petitioner only argues that the Magistrate Judge was “misplaced” in
reading his petition as alleging he was being “threatened” at FCI-Estill. Pet’r’s Objs. 2.
Furthermore, Petitioner “objects to the entire report at length because the facts are written
contradictory to the record.” Id. The Court, however, may only consider objections to the R&R that

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direct it to a specific error. See Fed. R. Civ. P. 72(b); United States v. Schronce, 727 F.2d 91, 94 n.4
(4th Cir. 1984); Wright v. Collins, 766 F.2d 841, 845-47 nn.1-3 (4th Cir. 1985). “Courts have . . .
held de novo review to be unnecessary in . . . situations when a party makes general and conclusory
objections that do not direct the court to a specific error in the [Magistrate Judge’s] proposed
findings and recommendation.” Orpiano, 687 F.2d at 47. Furthermore, in the absence of specific
objections to the R&R, this Court is not required to give any explanation for adopting the
recommendation. Camby, 718 F.2d at 199. Petitioner’s latter objection “to the entire report” is the
epitome of a general and conclusory objection. His former objection, while specific, is irrelevant to
the Magistrate Judge’s recommendation. Petitioner had already raised the issue of his detention in
the special housing unit in another action before the Court. Thus, the Court need not conduct a de
novo review, and, having reviewed the R&R for clear error, the Court finds the Magistrate Judge’s
recommendation to be proper. Petitioner’s objections are overruled.
CONCLUSION
The Court has thoroughly reviewed Petitioner’s § 2241 petition, the Magistrate Judge’s
R&R, objections to the R&R, and applicable law.

For the reasons stated above and by the

Magistrate Judge, the Court hereby overrules Petitioner’s objections and adopts the Magistrate
Judge’s R&R.
IT IS THEREFORE ORDERED that Petitioner’s petition is DISMISSED without
prejudice and without requiring Respondent to respond.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
August 21, 2013
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