Call v. Saad et al

Filing 9

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 7 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DENYING AS MOOT PETITIONER'S 2 MOTION FOR INJUNCTIVE RELIEF. The petitioner's 1 petition for writ of habeas corpus is DENIED. It is further ORDERED that this case be DISMISSED WITHOUT PREJUDICE to the petitioner's right to file a Bivens action and STRICKEN 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 12/5/17. (Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 12/5/2017: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KENNETH CHAD CALL,
Petitioner,
v.

Civil Action No. 5:17CV64
(STAMP)

WARDEN SAAD and BUREAU OF PRISON
NATIONAL MEDICAL DIRECTOR, Overseer
of the “Evaluation and Management of
Hepatitis C Virus (HCV) Infection
Guidelines” Treatment Program/Policy,
Respondents.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND DENYING AS MOOT PETITIONER’S
MOTION FOR INJUNCTIVE RELIEF
I.

Procedural History

The pro se1 petitioner, Kenneth Chad Call, filed a petition
for

habeas

corpus

under

28

U.S.C.

§

2241

(Ҥ

2241”).

The

petitioner also filed a motion for injunctive relief from the
Bureau

of

Prisons

(the

“BOP”)

“Evaluation

and

Management

of

Hepatitis C Virus (HCV) Infection” policy. The action was referred
to United States Magistrate Judge James E. Seibert for initial
review and report and recommendation pursuant to Local Rule of
Prisoner Litigation Procedure 2.

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).

The

magistrate

judge

filed

a

report

and

recommendation

recommending that this matter be dismissed without prejudice to the
petitioner’s right to file an action under Bivens v. Six Unknown
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (a
“Bivens action”).

The magistrate judge also recommended that the

petitioner’s motion for injunctive relief be denied as moot.

The

magistrate judge informed the parties that if they objected to any
portion of the report and recommendation, they were required to
file written objections within 14 days after being served with
copies of the report.

Neither party filed objections.
II.

Facts

The pro se petitioner is currently incarcerated at FCI-Gilmer,
where he is serving a sentence imposed by the United States
District Court for the Western District of North Carolina. The
petitioner contends that he has contracted hepatitis C, which he
describes as a chronic, contagious liver disease.

The petitioner

further

“life-altering

alleges

that

he

has

not

received

the

medication they have available, known as Direct-Acting Antivirals.”
ECF No. 1 at 5.

In his petition and in his motion for injunctive

relief, the petitioner seeks an order enjoining the BOP from
continuing to apply its October 2016 “Evaluation and Management of
Chronic Hepatitis C Virus (HCV) Infection” policy.
the

petitioner

requests

that

the

BOP

provide

Specifically,
direct

acting

antivirals to treat hepatitis C, without taking into consideration

2

the prisoner’s fibrosis score.

The BOP’s October 2016 policy

classifies prisoners with a score of stage 0 to stage 1 fibrosis on
their liver biopsy as being “Low Priority for Treatment,” subject
to certain exceptions.

ECF No. 2-1 at 13.

For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.
III.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.
file

any

objections

to

the

Because the petitioner did not

report

and

recommendation,

the

magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A).
IV.

Discussion

In his report and recommendation, the magistrate judge found
that the petition is not an attack on, nor are its claims in any
way

related

Rather,

by

to,

the

making

execution

of

allegations

the

about

petitioner’s
his

medical

sentence.
care,

the

magistrate judge determined that the petitioner is complaining of
the conditions of his confinement and possibly alleging an Eighth
Amendment violation. Thus, the magistrate judge concluded that the
petition cannot proceed under § 2241, which allows a prisoner to

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attack the manner in which his sentence is executed.

See Preiser

v. Rodriguez, 411 U.S. 475, 498 (1973) (describing the “heart of
[a] habeas corpus [petition]” as a petitioner “challenging the fact
or

duration

of

his

physical

confinement

itself”

or

“seeking

immediate release or a speedier release from that confinement”).
The magistrate judge noted that the case would have to proceed as
a Bivens action, which allows individuals to sue a federal actor
for constitutional violations.

See Hall v. Clinton, 235 F.3d 202,

204 (4th Cir. 2000) (describing a Bivens action as “a judicially
created

damages

remedy

designed

to

vindicate

constitutional rights by federal actors”).

violations

of

This Court finds no

error in the determinations of the magistrate judge and thus
upholds his recommendation.
V.

Conclusion

Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the report and recommendation of the magistrate judge
(ECF No. 7) is hereby AFFIRMED and ADOPTED in its entirety.
Accordingly, the petitioner’s petition for writ of habeas corpus
under 28 U.S.C. § 2241 (ECF No. 1) is DENIED.

Additionally, the

petitioner’s motion for injunctive relief (ECF No. 2) is DENIED AS
MOOT.

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It is further ORDERED that this case be DISMISSED WITHOUT
PREJUDICE to the petitioner’s right to file a Bivens action 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 counsel of record herein and 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:

December 5, 2017

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

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