Banks v. Warden

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 6 ] AND OVERRULING OBJECTION [ECF NO. 11 ]. The Court ADOPTS the Report & Recommendation [ECF No. 6 ]. Petitioner's objection is OVERRULED. [ECF No. 11 ]. The Petition for Writ of Habeas C orpus pursuant to 28 U.S.C. § 2241 is hereby TRANSFERRED to the Western District of Louisiana for all further proceedings. The Petition is DISMISSED and STRICKEN from the docket as to Petitioner Abu-Ghosh. Petitioner's motion to proceed as pauper is DENIED AS MOOT. [ECF No. 2 ]. Petitioner's motion to dismiss Dr. Shelly Power as a party to the action is GRANTED. [ECF No. [ 12 ]. Signed by District Judge Thomas S. Kleeh on 4/27/2021. (Mailed to PS Petitioners via CM, RRR.)(wrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
FREDERICK BANKS, and
ISSAM HUSSEIN ABU-GOSH
Petitioners,
v.

Civ. Action No. 1:20-CV-258
(Kleeh)

WARDEN S. MA’AT, FCI Oakdale,
WARDEN ANTONELLI, USP Hazelton,
FPC Hazelton, FEDERAL BUREAU OF
PRISONS, UNIT MANAGER MCCLOUGH (Oakdale),
TRUST FUND SUPERVISOR,
DR. SHELLY POWER, and
PSYCHOLOGY,
Respondents.
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 6]
AND OVERRULING OBJECTION [ECF NO. 11]
On November 16, 2020, the pro se Petitioner, Frederick Banks
(“Petitioner”), filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2241 (the “Petition”). [ECF No. 1]. He filed the
Petition on his own behalf and purportedly on behalf of another
inmate, by the name of Issam Hussein Abu-Gosh. Id. The Petition
raises both § 2241 and civil rights claims. Id.
Pursuant to 28 U.S.C. § 636 and the local rules, the Court
referred the action to United States Magistrate Judge Michael J.
Aloi for initial review. On November 20, 2020, the Magistrate Judge
entered

a

Report

and

Recommendation

(“R&R”)

[ECF

No.

6],

recommending that the Court transfer the petition for writ of

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 6]
AND OVERRULING OBJECTION [ECF NO. 11]
habeas corpus under 28 U.S.C. § 2241(a) to the Western District of
Louisiana, this district in which the petitioner is currently
incarcerated, for all further proceedings. [ECF No. 6].
The R&R also informed the parties regarding their right to
file specific written objections to the magistrate judge’s report
and recommendation. Under Local Rule 12 of the Local Rules of
Prisoner Litigation Procedure of the Northern District of West
Virginia,

“[a]ny

party

may

object

to

a

magistrate

judge’s

recommended disposition by filing and serving written objections
within fourteen (14) calendar days after being served with a copy
of the magistrate judge’s recommended disposition.” LR PL P 12.
Therefore, parties had fourteen (14) calendar days from the date
of

service

of

the

R&R

to

file

“specific

written

objections,

identifying the portions of the Report and Recommendation to which
objection is made, and the basis of such objection.” The R&R
further

warned

them

that

the

“[f]ailure

to

file

written

objections . . . shall constitute a waiver of de novo review by
the District Court and a waiver of appellate review by the Circuit
Court of Appeals.” The docket reflects that Petitioner accepted
service of the R&R on November 27, 2020. [ECF No. 10]. Petitioner
timely filed objections to the R&R on December 7, 2020. [ECF No.
11].
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
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ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 6]
AND OVERRULING OBJECTION [ECF NO. 11]
made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt,
without

explanation,

any

of

the

magistrate

judge’s

recommendations” to which there are no objections. Dellarcirprete
v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will
uphold portions of a recommendation to which no objection has been
made unless they are clearly erroneous. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Petitioner filed a three (3) page document from which the
Court gathers one objection to the Magistrate Judge’s R&R. [ECF
No.

11].

Petitioner

objects

to

the

Magistrate

Judge’s

recommendation that some of his claims may be brought in a Bivens
action, and others in the habeas corpus petition. This objection
warrants a de novo review by this Court.
The Court finds that Petitioner’s objection is unfounded. As
the Magistrate Judge made clear, challenges of the conditions of
a prisoner’s confinement or a violation of an inmate’s civil rights
are not claims which can be brought in a habeas corpus petition.
See Preiser v. Rodriguez, 411 U.S. 475, 499-500 (federal habeas
relief extends to prisoners challenging the fact or duration of
imprisonment

and

§

1983

actions

apply

to

inmates

making

constitutional challenges to conditions of confinement); see also
Lee v. Winston, 717 F.2d 888 (4th Cir. 1983). To pursue the civil
rights claims raised in this petition, the Petitioner must file a
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ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 6]
AND OVERRULING OBJECTION [ECF NO. 11]
Bivens civil rights lawsuit governed by 28 U.S.C. § 1331 and pay
the $350.00 filing fee.
While Petitioner argues in his objection that he in fact can
raise the civil rights claims in the instant habeas petition, this
assertion is unsupported. From what the Court can glean from the
petition,

Petitioner

is

not

challenging

the

legality

of

his

custody, and does not seek the immediate or speedier release from
imprisonment. Rather, Petitioner is challenging the conditions of
confinement (i.e. unlawful confinement in quarantine or the SHU,
illegal withholding of property, and prison cell conditions). Such
challenges

are

claims

of

violations

of

civil

rights

and

are

appropriate claims to raise in a Bivens complaint.
Therefore, upon careful review, the Court ADOPTS the R&R [ECF
No. 6]. Petitioner’s objection is OVERRULED. [ECF No. 11]. The
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is
hereby TRANSFERRED to the Western District of Louisiana for all
further proceedings. See 28 U.S.C. § 1404(a) (“For the convenience
of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or
division where it might have been brought.”); see also 28 U.S.C.
§ 1406(a) (“The district court of a district in which is filed a
case laying venue in the wrong division or district shall dismiss,
or if in the interest of justice, transfer such case to any
district or division in which it could have been brought.”).
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ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 6]
AND OVERRULING OBJECTION [ECF NO. 11]
The Petition is DISMISSED and STRICKEN from the docket as to
Petitioner Abu-Ghosh, because it states no § 2241 claims on AbuGhosh’s behalf, only on Petitioner Banks’ behalf. Petitioner’s
motion to proceed as pauper is DENIED AS MOOT. [ECF No. 2].
Finally, Petitioner’s motion to dismiss Dr. Shelly Power as a party
to the action is GRANTED. [ECF No. 12].
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to
counsel of record via electronic means and to the pro se Petitioner
via certified mail, return receipt requested.
DATED: April 27, 2021
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

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