Hargrove v. Masters
Filing
47
MEMORANDUM OPINION AND ORDER: The court OVERRULES plaintiff's objections to Magistrate Judge Aboulhosn's PF&R. To the extent that Hargrove's objections have been docketed as a 46 MOTION to Change Venue or seeking other relief, tho se motions are DENIED. The court adopts the factual and legal analysis contained within the PF&R, GRANTS defendant's MOTION to Dismiss, or in the alternative, MOTION for Summary Judgment, DISMISSES plaintiff's complaint, and DIRECTS the Clerk to remove this matter from the court's active docket. Signed by Senior Judge David A. Faber on 2/23/2017. (cc: Plaintiff, pro se; attys) (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
CHARLIE HARGROVE, JR.,
Plaintiff,
v.
Civil Action No: 1:15-06930
BART MASTERS,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of proposed
findings and recommendations for disposition pursuant to 28
U.S.C. § 636(b)(1)(B).
The magistrate judge submitted his
proposed findings and recommendations (“PF&R”) on November 17,
2016.
(Doc. No. 41).
In his PF&R, Magistrate Judge Aboulhosn
recommended that the court grant defendant’s motion to dismiss or
in the alternative, motion for summary judgment, dismiss
plaintiff’s complaint, and remove the matter from the court’s
docket.
In accordance with the provisions of 28 U.S.C. § 636(b), the
parties were allotted fourteen days, plus three mailing days, in
which to file any objections to the PF&R.
After having received
an extension of time to file objections, see Doc. No. 45,
plaintiff timely filed objections to the PF&R on December 19,
2016.
(Doc. No. 46).
With respect to those objections, the
court has conducted a de novo review.
However, because
plaintiff’s objections are without merit, the court grants
defendant’s motion to dismiss and/or for summary judgment and
dismisses plaintiff’s complaint.
Plaintiff is a federal inmate formerly incarcerated at the
Federal Correctional Institution located at McDowell, West
Virginia (“FCI McDowell”).
On May 29, 2015, plaintiff, acting
pro se, filed a complaint alleging violations of his
constitutional and civil rights pursuant to Bivens v. Six Unknown
Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
In his complaint, plaintiff alleges that he was “exposed
to black mold inside the inmate work place” and that, because of
this exposure, he has “been having health issues, such as
breathing problems, headaches, a dry cough that goes and comes at
times, staying tired and sleeping a lot, and waking up confused.”
Docs. No. 1 and 2 at pp.4-5.
In his disposition of plaintiff’s complaint, Magistrate
Judge Aboulhosn made the following specific recommendations: 1)
that the court dismiss defendant Masters because he cannot be
sued in his official capacity; 2) that plaintiff’s claim against
Masters sounding in supervisory liability be dismissed; and 3)
that plaintiff’s Bivens claim against Masters be dismissed for
failure to state a claim.
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Plaintiff’s objections are largely unresponsive to the
magistrate judge’s recommendations.
Indeed, his objections are
entitled a “Motion for Corrective Filing with Motion for Change
of Venue Because Victim was Transfer [sic] Thus Without Notifying
the U.S. Attorney FRAP 23(a). . .
I Also Ask the Court to Issue
a[n] Order Withdrawing Its Proposed Findings and Recommendation.
. . .
Motion for the Relief in the Caption and Tort Claim
Filed. . . Objecting to Recommendation.”
Doc. No. 46.
As the title indicates, Hargrove, no longer incarcerated at
FCI McDowell, believes that he was transferred in violation of
Federal Rule of Appellate Procedure 23(a).
Hargrove’s argument
is without merit because Fed. R. App. P. 23(a) has no application
herein given that the instant action is neither a habeas corpus
proceeding nor on appeal.
See Hairston v. Nash, No. 05-4809, 165
F. App’x 233, 235 (3d Cir. Feb. 7, 2006) (“We agree with the
District Court that Hairston’s reliance on Federal Rule of
Appellate Procedure 23(a) is misplaced, because Hairston’s § 2255
motion was not on appeal at the time he was transferred.”);
Thornton v. Butler, No. CIV S-03-0755 MCE DAD P, 2008 WL 5329958,
*1 (E.D. Cal. Dec. 19, 2008) (“Respondent is correct that Fed. R.
App. P. 23(a), by its terms, does not appear to prevent
petitioner’s transfer.
The matter is not `pending review of a
decision in a habeas corpus proceeding.’
On the contrary, no
decision has yet been rendered on petitioner’s habeas
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petition.”).
Furthermore, as plaintiff himself acknowledges, his
claim has proceeded under Bivens and, therefore, on its face,
Rule 23(a) does not apply.
For these reasons, there has been no
transfer of custody in violation of any rule and Hargrove’s
objection to that point is OVERRULED.
Perhaps because of this impediment, plaintiff now argues
that the magistrate judge was incorrect to construe his claim as
arising under Bivens rather than treating it as a habeas corpus
petition under 28 U.S.C. § 2241.
This argument fails as well.
First, plaintiff has known since at least January 29, 2016 that
this action was proceeding under Bivens, see Doc. No. 13, and he
failed to object to that characterization.
Second, and more
importantly, the magistrate judge properly construed this action
as a Bivens action because “challenges to the conditions of [ ]
confinement are not cognizable under § 2241, but instead must be
pursued through a Bivens action. . . .”
Hawkins v. Perdue, Civil
Action No. 1:13CV214, 2014 WL 1962216, *2 (N.D.W. Va. May 15,
2014) (“Nevertheless, district courts within this circuit have
staked out their place on the spectrum by demonstrating a
consistent reluctance to permit prisoners challenging the
conditions of their confinement to proceed under § 2241.”); see
also Crooker v. Stewart, Civil Action No. ELH-14-1972, 2015 WL
1210209, *3 (D. Md. Mar. 13, 2015) (holding that a prisoner may
not challenge conditions of confinement under § 2241 and
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providing numerous examples within the Fourth Circuit holding the
same).
The rule in the Sixth Circuit is largely the same and
Hargrove would likely fare no better there.
See Sullivan v.
United States, No. 03-5819, 90 F. App’x 862, 863 (6th Cir. Jan.
30, 2004) (Ҥ 2241 is a vehicle not for challenging prison
conditions, but for challenging matters concerning the execution
of a sentence such as the computation of good-time credits.”).
Accordingly, the court OVERRULES plaintiff’s objections to
Magistrate Judge Aboulhosn’s PF&R.
To the extent that Hargrove’s
objections have been docketed as a motion to change venue or
seeking other relief, see Doc. No. 46, those motions are DENIED.
The court adopts the factual and legal analysis contained within
the PF&R, GRANTS defendant’s motion to dismiss, or in the
alternative, motion for summary judgment, DISMISSES plaintiff’s
complaint, and DIRECTS the Clerk to remove this matter from the
court’s active docket.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record and to plaintiff, pro se.
IT IS SO ORDERED on this 23rd day of February, 2017.
ENTER:
David A. Faber
Senior United States District Judge
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