Chandler v. Carter

Filing 14

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 11 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE re 1 Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITHOUT PREJUDICE. It is ORDERED that this civil action be DISMISSED and STRI CKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/22/2013. (copy to Pro Se Petitioner via Certified Mail, rrr) (nmm) (Additional attachment(s) added on 10/22/2013: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
EDDIE CHANDLER,
Petitioner,
v.

Civil Action No. 5:13CV50
(STAMP)

ANNE CARTER, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

On April 12, 2013, the pro se1 petitioner, Eddie Chandler,
filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241.2
The

petitioner

alleges

harm

based

on

a

dentist’s

care

that

allegedly resulted from the petitioner biting into a rock that was
in a piece of chicken he was eating.
the

dentist

acted

with

The petitioner claims that

deliberate

indifference,

and

the

indifference has risen to the level of cruel and unusual punishment
in

violation

of

the

Eighth

Amendment.

Due

to

the

alleged

deliberate indifference, the petitioner asserts that he suffers
from continuing and intermittent pain and suffering, emotional pain
affecting his sleep, and recession of the gum around the subject

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).
2

The petitioner is currently an inmate at FCI-Morgantown.

tooth. As relief, the petitioner seeks an order requiring that the
respondent refer him to a dental specialist for examination and
care.
In accordance with Local Rule of Prisoner Litigation Procedure
2, this case was referred to United States Magistrate John S. Kaull
for initial review and report and recommendation.

On April 30,

2013, Magistrate Judge Kaull issued a report and recommendation
recommending that the petitioner’s § 2241 petition be denied and
dismissed without prejudice.

Specifically, he found that the

petitioner is not entitled to any relief under § 2241 because he is
not challenging the legality of his custody and does not seek the
immediate or speedier release from imprisonment.

Therefore, the

magistrate judge found that the petitioner must file a civil rights
lawsuit to pursue the claims he raises in his petition.

The

magistrate judge advised the parties that, pursuant to 28 U.S.C.
§ 636(b)(1)(C), any party may file written objections to his
proposed findings and recommendations within 14 days after being
served a copy of the report and recommendation.

Neither party

filed objections.
II.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

Because no

objections were filed, all findings and recommendations will be

2

upheld unless they are “clearly erroneous or contrary to law.”

28

U.S.C. § 636(b)(1)(A).
III.

Discussion

A § 2241 motion is used to attack the manner in which a
sentence is executed. See Preiser v. Rodriguez, 411 U.S. 475, 499500 (1973).

This Court, therefore, agrees with the magistrate

judge, that, because the petitioner’s claim does not relate to the
fact or length of confinement, but instead relates to the care he
is receiving in confinement or rather the conditions of his
confinement, the petitioner should have filed a civil rights action
rather than a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241.
IV.

Conclusion

For the reasons set forth above, this Court finds no clear
error in the report and recommendation of the magistrate judge, and
it is therefore AFFIRMED and ADOPTED in its entirety. Accordingly,
for the reasons set forth above, the petitioner’s § 2241 petition
is DENIED and DISMISSED WITHOUT PREJUDICE to the petitioner’s right
to re-file his claims as a civil rights action.

It is ORDERED that

this civil action be DISMISSED and STRICKEN from the active docket
of this Court.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a

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waiver of appellate rights.

Because the petitioner has failed to

object, he has waived his right to seek appellate review of this
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail.
Pursuant to Federal Rule of Civil Procedure 58, the Clerk is
DIRECTED to enter judgment on this matter.
DATED:

October 22, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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