Telfer v. Perdue

Filing 18

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 6 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The petitioners § 2241 petition 1 is DENIED and DISMISSED WITHOUT PREJUDICE to the petitioners right to re-file his claims as a civil right s action. Further, petitioners motions to expedite 6 and 7 are DENIED AS MOOT. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/4/2014. (copy to Pro Se Petitioner via Cert. Mail, rrr) (nmm) (Additional attachment(s) added on 8/4/2014: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES CHARLES TELFER,
Petitioner,
v.

Civil Action No. 5:14CV60
(STAMP)

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

Background

On May 13, 2014, pro se1 petitioner, James Charles Telfer,
filed a petition pursuant to 28 U.S.C. § 2241, asserting that he
has been subjected to cruel and unusual punishment because the
prison officials are disregarding his severe medical conditions.
Further,

the

petitioner

contends

that

his

complaint

letters

relating to the treatment of himself and another inmate, Sigmund
Prescott, have been mishandled by prison staff.

After filing his

petition, he filed two letter motions to expedite a decision.
In accordance with Local Rule of Prisoner Litigation Procedure
2, this case was referred to United States Magistrate Robert W.
Trumble.

After reviewing the petition, Magistrate Judge Trumble

issued a report and recommendation, recommending that this Court

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

deny the petition and dismiss it without prejudice because § 2241
was not the appropriate proper avenue to seek his requested relief.
Instead, the magistrate judge stated that the complaints should
have been raised pursuant to a civil rights complaint.

Further,

the magistrate judge recommended that the petitioner’s motion to
expedite be denied as moot.

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.
II.

The parties did not file objections.
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
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

2

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.

petitioner’s motion to expedite are DENIED AS MOOT.

Further,

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
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.

3

Pursuant to Federal Rule of Civil Procedure 58, the Clerk is
DIRECTED to enter judgment on this matter.
DATED:

August 4, 2014

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

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