Fontanez v O'Brien

Filing 7

ORDER ADOPTING Report and Recommendation (DKT. NO. 6 ). The Court adopts the 6 Report and Recommendation in its entirety and DISMISSES Fontanez's petition WITHOUT PREJUDICE. The Clerk is directed to enter a separate judgment order in this matter. Signed by District Judge Irene M. Keeley on 12/6/16. (Copy PS Petitioner via cert. mail)(mh) (Additional attachment(s) added on 12/6/2016: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JEREMY FONTANEZ,
Petitioner,
v.

CIVIL ACTION NO.: 1:15CV182
(Judge Keeley)

WARDEN TERRY O’BRIEN,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
On November 25, 2014, the pro se petitioner, Jeremy Fontanez
(“Fontanez”), an inmate at FCI Hazelton, filed a petition pursuant
to 28 U.S.C. § 2241, alleging that Bureau of Prison (“BOP”)
officials had confiscated his eagle feathers, which he maintained
were a part of his Native American religious practice (dkt. no. 1).
For relief, he asked the Court to “decide this case in a way that
ensures the B.O.P. cannot deprive Petitioner, or anyone else in his
position, of his right to possess integral eagle feather for
purposes of religious practices.” Id. at 8.
The Court referred this matter to United States Magistrate
Judge Robert W. Trumble for initial screening and a Report and
Recommendation (“R&R”) in accordance with LR PL P 2. On November
12, 2015, Magistrate Judge Trumble issued his R&R, in which he
concluded that the Fontanez could not bring his claim through a §
2241 habeas corpus petition, which attacks the validity, manner, or
length of a prisoner’s confinement (dkt. no. 6 at 1-2). Instead of
a habeas petition, Fontanez would need to file a Bivens action in

FONTANEZ V. O’BRIEN

1:15CV182

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
order to pursue the relief he requested. Id. at 2. Accordingly, the
R&R

recommended

that

the

Court

dismiss

the

petition

without

prejudice. Id. at 2-3.
The R&R also specifically warned Fontanez that his failure to
object to the recommendation would result in the waiver of any
appellate rights he might otherwise have on this issue. Id. at 3.
Fontanez did not file any objections.1 Consequently, finding no
clear error, the Court ADOPTS the R&R in its entirety (dkt. no. 6)
and DISMISSES Fontanez’s petition WITHOUT PREJUDICE.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this order to the pro se petitioner, certified mail, return receipt
requested.
Dated: December 6, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

1

The failure to object to the Report and Recommendation not only
waives the appellate rights in this matter, but also relieves the
Court of any obligation to conduct a de novo review of the issue
presented. See Thomas v. Arn, 474 U.S. 140, 148-53 (1985); Wells v.
Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997).
2