United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND OVERRULING
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se petitioner filed his petition under §
2241. ECF No. 1. In his petition, the petitioner states that
the Federal Bureau of Prisons (“BOP”) is trying
to carry out a death sentence “the Court did not give
[him].” Id. at 6.
States Magistrate James P. Mazzone entered a report and
recommendation. ECF No. 5. In that report and recommendation,
the magistrate judge recommends that the petitioner's
petition (ECF No. 1) be dismissed without prejudice
Id. at 2.
that report and recommendation, the petitioner filed a motion
titled “Motion for Clarification.” ECF No. 8.
This Court will construe this motion as objections to the
magistrate judge's report and recommendation. In his
motion (ECF No. 8), the petitioner indicates that he has a
tenth grade education, and that he has been trying to address
his concerns by filing grievances. Id. at 1. He
states that the BOP is trying to kill him, by not providing
medical attention, and that the staff will not allow him to
exhaust his administrative remedies. Id. He further
contends that he is being denied a First Amendment right.
Id. at 2. Petitioner indicates that he does not
understand why he cannot use this instant petition to
challenge his conditions of confinement. Id.
reasons set forth below, the report and recommendation of the
magistrate judge (ECF No. 5) is affirmed and adopted, the
petitioner's objections (ECF No. 8) are overruled.
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 an objection is timely
made. Because the petitioner filed objections to the report
and recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which the petitioner objected. As to those findings to which
objections were not 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). As the
Supreme Court of the United States stated in United
States v. United States Gypsum Co., “a finding is
‘clearly erroneous' when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed.” 333 U.S. 364, 395 (1948). Because the
petitioner filed objections to the report and recommendation,
the magistrate judge's recommendation will be reviewed
petition filed pursuant to 28 U.S.C. § 2241, is used to
attack the manner in which a sentence is executed, and is
appropriate where a prisoner challenges the fact or duration
of his confinement rather than the conditions of that
confinement. The magistrate judge correctly stated that
petitioner's petition pertains to his conditions of
confinement, which is “not an attack on, nor . . .
related in any way to, the execution of his sentence.”
Id. The magistrate judge properly indicated that
petitioner's claim should have been raised in a civil
rights complaint. Id.
reasons discussed above, the report and recommendation of the
magistrate judge (ECF No. 5) is AFFIRMED and ADOPTED, and the
petitioner's objections (ECF No. 8) are overruled. It is
further ORDERED that this civil action be DISMISSED WITHOUT
PREJUDICE and STRICKEN from the active docket of this
Court. Also, petitioner's motion for leave to
proceed in forma pauperis (ECF No. 2) is DENIED AS MOOT.
the petitioner choose to appeal the judgment of this Court to
the United States Court of Appeals for the Fourth Circuit on
the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk ...