Boothe v. Campbell

Filing 8

MEMORANDUM ORDER ADOPTING 4 REPORT AND RECOMMENDATIONS. Plaintiff's objections are overruled and the Report of the Magistrate Judge is ADOPTED as the opinion of the District Court. The application for writ of habeas corpus isDISMISSED with pre judice as to its refiling in the form of a habeas corpus petition, but without prejudice as to its refiling in proper form and seeking proper relief. Petitioner Charles Boothe is DENIED a certificate of appealability sua sponte, with the denial of su ch certificate pertaining only to an appeal of the present case and having no effect upon the Petitioner's right to refile his claim in proper form and seeking proper relief. Any and all other motions which may be pending in this civil action are hereby DENIED. Signed by Judge Leonard Davis on 08/07/13. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
CHARLES LEE BOOTHE

§

v.

§

SHERIFF J. CAMPBELL

§

CIVIL ACTION NO. 6:13cv524

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Charles Boothe, proceeding pro se, filed this application for the writ of habeas
corpus challenging the legality of his confinement in the Cherokee County Jail. This Court ordered
that the matter be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1)
and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to
United States Magistrate Judges.
Boothe states that he tested positive for tuberculosis in the early 1980's while confined in the
State of Arizona. He received treatment and the disease was apparently deemed not to be active at
that time.
On January 12, 2013, he was placed in the Cherokee County Jail. He was called to the
medical department for tuberculosis testing, and when Boothe revealed his medical history, he was
taken to the local hospital for a chest X-ray. A week later, he was told that more X-rays had been
requested because the radiologist saw “something funny” in his lungs, but Cherokee County refused
the request.
On June 17, 2013, Boothe states that he began coughing up fresh blood . After a week of such
coughing, he told the jail staff about his history of tuberculosis, but the medical department decided,
without seeing him, that there was no immediate need to take him to the hospital. Since then,

1

Boothe states that the medical department has avoided seeing him, even though he has begun
developing other symptoms as well.
For relief in his habeas petition, Boothe asked that he be placed in federal custody and taken
to a medical facility where “competent medical professionals” will be able to diagnose and treat him.
He requests that the costs for this be borne by Cherokee County and states that when he is released
from this federal medical facility, he should be returned to Cherokee County to continue his defense
to the criminal charges against him.
After review of the pleadings, the Magistrate Judge issued a Report recommending that
Boothe’s application for habeas corpus relief be denied. After noting that requests for injunctive
relief seeking a transfer to another facility are not cognizable in habeas corpus, the Magistrate Judge
determined that Boothe had failed to exhaust his state remedies. Finally, the Magistrate Judge stated
that the federal district courts lack authority to order state prisoners transferred into federal custody
in absence of extraordinary circumstances, which Boothe did not show.
Boothe filed objections to the Magistrate Judge’s Report on July 29, 2013. In his objections,
Boothe says first that he has the right under the Eighth and Fourteenth Amendments to have his
serious medical needs attended to. With regard to exhaustion of state remedies, Boothe states that
he believes his first responsibility is to contact local health officials, but he is prohibited from doing
so by the jail officials, who will not allow him access to a law library, resource materials, or phone
books. Thus, he says that the Court should deem his state remedies exhausted; Boothe does not
indicate that he has presented his claims to the courts of the State of Texas, as required by 28 U.S.C.
§2254(b)(1). Finally, Boothe argues that he has shown “extraordinary circumstances” by the very
nature of the disease of tuberculosis.
In his objections, Boothe does not dispute the Magistrate Judge’s conclusion that he has not
presented his claims to or received a ruling from the Texas Court of Criminal Appeals, as is required
to exhaust state remedies in a federal habeas corpus petition. Richardson v. Procunier, 762 F.2d 429,
431 (5th Cir. 1985); Dickerson v. State of Louisiana, 816 F.2d 220, 225 (5th Cir. 1987) (requiring
2

exhaustion of state remedies for pre-trial habeas petitions). Although Boothe discusses other civil
rights lawsuits he has filed in this Court under 42 U.S.C. §1983, he does not address the Magistrate
Judge’s conclusion that habeas corpus is not a proper vehicle for the claims raised and the relief
sought in this case. His objections are without merit.
The Court has conducted a careful de novo review of the pleadings in this cause, including
the Report of the Magistrate Judge and the Plaintiff’s objections thereto. Upon such de novo review,
the Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiff’s
objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled application for the writ of habeas corpus be and hereby is
DISMISSED with prejudice as to its refiling in the form of a habeas corpus petition, but without
prejudice as to its refiling in proper form and seeking proper relief. It is further
ORDERED that the Petitioner Charles Boothe is hereby DENIED a certificate of
appealability sua sponte, with the denial of such certificate pertaining only to an appeal of the present
case and having no effect upon the Petitioner’s right to refile his claim in proper form and seeking
proper relief. Finally, it is
ORDERED that any and all other motions which may be pending in this civil action are
hereby DENIED.
So ORDERED and SIGNED this 7th day of August, 2013.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

3