Neihart v. Myers

Filing 4

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Robert O'Dell Neihart. It is recommended that Petitioners application for writ of habeas corpus be dismissed without prejudice to reasserting such claims in a complaint brought pursuant to Bivens. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ROBERT O’DELL NEIHART
#39016-013
V.
WARDEN R. MYERS

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A-17-CA-1109-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Court submits this Report and Recommendation to the United States District

Court pursuant to 28 U.S.C. § 636(b), Rule 4 of the Rules Governing Section 2254 Cases, and
Rule 1(f) of Appendix C of the Local Rules of the United States District Court for the Western
District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the Court is Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2241 (Document 1).1 Petitioner, proceeding pro se, has been granted leave to proceed in forma
pauperis. For the reasons set forth below, the undersigned finds that Petitioner’s application for writ
of habeas corpus should be dismissed.
STATEMENT OF THE CASE
Petitioner is a federal prisoner confined in FCI Bastrop. He alleges the staff at FCI Bastrop
has been deliberately indifferent to his physical and mental health needs. He requests the Court to
direct the Bureau of Prisons to authorize the treatment to correct his collarbone injury, to direct
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Attached to Petitioner’s application for habeas corpus relief are his Forensic Psychological
Diminished Capacity Evaluation and Forensic Psychological Competence to Stand Trial Evaluation.
The Court orders the Clerk of Court to seal both documents.

Warden Myers to ensure the Health Services Unit of FCI Bastrop provides proper treatment for the
open wounds on his body, and to order that Plaintiff be housed at a location where it is less likely
he will have to interact with sex offenders.
DISCUSSION AND ANALYSIS
The petition relating to the conditions of Petitioner’s confinement is not cognizable on habeas
review. It is well-settled law that federal prisoners who wish to challenge the conditions of their
confinement, as opposed to its fact or duration, must do so through civil rights lawsuits filed
pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)—not through federal habeas
proceedings. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “[H]abeas is not available to review
questions unrelated to the cause of detention. Its sole function is to grant relief from unlawful
imprisonment or custody and it cannot be used properly for any other purpose.” Pierre v. United
States, 525 F.2d 933, 935–36 (5th Cir. 1976). Petitioner’s claims pertain to the conditions of his
confinement, not the constitutionality of his custody. Therefore, they are properly brought in a civilrights action.
RECOMMENDATION
It is recommended that Petitioner’s application for writ of habeas corpus be dismissed
without prejudice to reasserting such claims in a complaint brought pursuant to Bivens.
OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
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A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (1985);
Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
SIGNED this 19th day of December, 2017.

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ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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