Banks v. Bureau of Prisons

Filing 7

MEMORANDUM OPINION AND ORDER: adopting the 6 Proposed Findings and Recommendations of the Magistrate Judge; construing the Petitioner's 1 Application Under 28 U.S.C. Section 2241 for Writ of Habeas Corpus as a Complaint filed pursuant to Bi vens v. Six Unknown Named Agents of the Federal Bureau of Narcotis, 403 U.S. 388, 395-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and dismissing the Petitioner's Complaint; removing this matter from the Court's docket. Signed by Judge Irene C. Berger on 10/6/2017. (cc: Magistrate Judge Aboulhosn; attys; any unrepresented party) (btm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

JERMAINE BANKS,
Petitioner,
v.

CIVIL ACTION NO. 5:15-cv-06979

BUREAU OF PRISONS F.C.I. BECKLEY,
WEST VIRGINIA and JOE COAKLEY,
Respondents.

MEMORANDUM OPINION AND ORDER

On June 1, 2015, the Petitioner, proceeding pro se, filed his Application Under 28 U.S.C. §
2241 for Writ of Habeas Corpus By a Person in State or Federal Custody (Document 1).
By Standing Order (Document 2) entered on June 1, 2015, this action was referred to the
Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of
proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636.
Subsequently, by Order (Document 3) entered on January 6, 2016, the case was referred to the
Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission to this Court of
proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636.
On September 14, 2017, Magistrate Judge Aboulhosn submitted a Proposed Findings and
Recommendation (Document 6) wherein it is recommended that the Petitioner’s Application Under
28 U.S.C. § 2241 for Writ of Habeas Corpus By a Person in State or Federal Custody (Document 1)
be construed as a Complaint filed pursuant to Bivens v. Six Unknown Named Agents of the Federal
1

Bureau of Narcotis, 403 U.S. 388, 395-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); that the Petitioner’s
Complaint (Document 1) be dismissed; and that this matter be removed from the Court’s docket.
Objections to the Magistrate Judge=s Proposed Findings and Recommendation were due by
October 2, 2017, and none were filed by either party. The Court is not required to review, under a de
novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions
of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S.
140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review and a party’s
right to appeal this Court=s Order. 28 U.S.C. ' 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363,
1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation
of the Magistrate Judge as contained in the Proposed Findings and Recommendation, and ORDERS
that the Petitioner’s Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus By a Person in
State or Federal Custody (Document 1) be CONSTRUED as a Complaint filed pursuant to Bivens
v. Six Unknown Named Agents of the Federal Bureau of Narcotis, 403 U.S. 388, 395-97, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971); that the Petitioner’s Complaint (Document 1) be DISMISSED; and
that this matter be REMOVED from the Court’s docket.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Aboulhosn, counsel of record, and any unrepresented party.
ENTER:

2

October 6, 2017