United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DENYING AS
MOOT PETITIONER'S MOTION FOR INJUNCTIVE RELIEF
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se petitioner, Kenneth Chad Call, filed a
petition for habeas corpus under 28 U.S.C. § 2241
(“§ 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.
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.
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 alleges that
he has not received the “life-altering 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. Specifically, the petitioner
requests that the BOP provide direct acting antivirals to
treat hepatitis C, without taking into consideration 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.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
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.
Because the petitioner did not file any objections to the
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.
report and recommendation, the magistrate judge found that
the petition is not an attack on, nor are its claims in any
way related to, the execution of the petitioner's
sentence. Rather, by making allegations about his medical
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 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 violations of constitutional
rights by federal actors”). This Court finds no error
in the determinations of the magistrate judge and thus
upholds his recommendation.
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.
further ORDERED that this case be DISMISSED WITHOUT PREJUDICE
to the petitioner's right to file a Bivens
action and ...