Kirkman v. Vermont Department of Corrections et al

Filing 20

ORDER Affirming, Approving and Adopting 18 Magistrate Judge's Report and Recommendation. 4 Motion for Writ of Habeas Corpus DENIED. 8 Motion to Strike Certain Respondents and Dismiss Certain Claims GRANTED. 8 Motion to Require Pet itioner to Establish Grounds for a Stay DENIED. 13 Motion to Deny Petition GRANTED to the extent the denial is without prejudice. Any appeal taken in forma pauperis from this Order would not be taken in good faith because such an appeal would be frivolous. Signed by District Judge J. Garvan Murtha on 6/4/2013. (kak)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
:
MICHAEL A. KIRKMAN
:
:
Petitioner,
:
:
v.
:
:
VERMONT DEPARTMENT OF
:
CORRECTIONS, ET AL.,
:
:
Respondents.
:
____________________________________:

File No. 1:12-cv-261-jgm

ORDER
(Doc. 18.)
The Magistrate Judge’s Report and Recommendation was filed April 22, 2013. (Doc. 18.)
The Report and Recommendation is AFFIRMED, APPROVED, and ADOPTED. See 28 U.S.C. §
636(b)(1).
1.

Michael Kirkman’s Petition (Doc. 4) is DISMISSED without prejudice as

unexhausted.
2.

The Respondents’ Motion to Strike Certain Respondents and Dismiss Certain Claims

as Improper (Doc. 8) is GRANTED.
3.

The Respondents’ Motion to Deny the Petition (Doc. 13) is GRANTED to the

extent denial is without prejudice; and
4.

The Respondents’ Motion to Require Petitioner to Establish Grounds for a Stay

(Doc. 8) is DENIED.
Following the issuance of the Report and Recommendation, Kirkman filed an additional
memorandum, entitled “Petitioner’s Rebuttal to Respondents Supplemental Memorandum,” on
April 30, 2013. (Doc. 19.) The memorandum responds to the Supplemental Memorandum

Regarding Access to the Courts and Petitioner’s Notice of Dismissal that the Respondents filed on
March 15, 2013. (Doc. 12.) Much of Kirkman’s Response challenges the adequacy of the law
library at the prison where he resides. Id. at 1-5. The Response also seeks to stay the Petition,
rather than dismiss it. Id. at 6. Kirkman had previously moved the Court to dismiss his petition
without prejudice. (Doc. 11 at 1.)
The Court adopts the Report and Recommendation notwithstanding this additional filing.
Filed over forty-five days after the Supplemental Memorandum, the Response is untimely. See D.
Vt. L.R. 7. The Response has not caused the Court to question the findings in the Report and
Recommendation. The Magistrate Judge correctly determined Kirkman had yet to exhaust his state
court remedies. (Doc. 18 at 11.) As a consequence, the stay-and-abeyance procedure is not
available to him. Id. at 11-12. This conclusion is unaffected by the adequacy of the prison law
library.
In light of this additional filing, the Court reviewed the findings in the Report and
Recommendation de novo. See 28 U.S.C. § 636(b)(1).
It is further certified that any appeal taken in forma pauperis from this Order
would not be taken in good faith because such an appeal would be frivolous. See 28
U.S.C. § 1915(a)(3).
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 4th day of June, 2013.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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