United States District Court, D. Minnesota
Scott Wedington, No. 18915-037, FMC Devens, pro se
M. Secord, UNITED STATES ATTORNEY'S OFFICE, for
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
R. TUNHEIM CHIEF JUDGE
April 3, 2017, Petitioner Calvin Scott Wedington, currently a
federal prisoner, filed a habeas petition pursuant to 28
U.S.C. § 2241, containing allegations of medical
malpractice and mistreatment while in custody at a previous
location. (Pet. for Writ of Habeas Corpus at 2-3, Apr. 3,
2017, Docket No. 1.) On May 31, 2017, United States
Magistrate Judge Franklin L. Noel issued a Report and
Recommendation (“R&R”) recommending dismissal
of the petition. (R&R, May 31, 2017, Docket No. 6.) The
Magistrate Judge reasoned that Wedington's action seeks
to challenge his conditions of confinement, rather than the
fact or duration of confinement, and thus, this action must
be brought in a civil-rights complaint instead of a habeas
petition. (Id. at 1 (citing Spencer v.
Haynes, 774 F.3d 467, 470-71 (8th Cir.
2014)).) The Magistrate Judge had previously informed
Wedington of this fact and provided him an opportunity to pay
the filing fee associated with a civil-rights complaint - in
light of Wedington's previous three strikes under 28
U.S.C. § 1915(g) and the fact that he did not allege he
was in imminent danger of serious physical injury.
(Id. at 1-2.) Wedington failed to pay the filing
fee, and the Magistrate Judge recommended dismissal of
Wedington's action without prejudice under Fed.R.Civ.P.
41(b) for failure to prosecute. (Id. at 2.) On June
12, 2017, Wedington filed objections to the R&R. (Objs.
to R&R, June 12, 2017, Docket No. 7.)
Court reviews “properly objected to” portions of
an R&R de novo. Fed.R.Civ.P. 72(b)(3); accord D.
Minn. LR 72.2(b)(3). Wedington objects to the Magistrate
Judge's recommendation that the Court finds he must bring
his current action in a civil-rights complaint, stating that
a habeas petition “is the only way to bring [an]
inhumane conditions” action against the
defendants. (Objs. to R&R at 1.) This is
incorrect. As discussed by the Magistrate Judge, a petitioner
may bring a habeas petition only to challenge “the
validity of his conviction or the length of his
detention” and not for the conditions of confinement.
Spencer, 774 F.3d at 469-70 (quoting Kruger v.
Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996)
(per curiam)). Actions seeking to challenge conditions of
confinement are brought through civil-rights complaints under
42 U.S.C. § 1983 or Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). See Spencer, 774 F.3d at 471 (discussing
transforming habeas petitions challenging conditions of
confinement into Bivens or § 1983 claims).
Wedington's objections do not call into question the
Magistrate Judge's conclusion that he is challenging the
conditions of confinement and that he does not clearly state
any imminent threat of “serious physical injury”
sufficient to avoid the filing fee for maintaining another
civil-rights action. 28 U.S.C. § 1915(g); (R&R at
2). Accordingly, the Court will overrule Wedington's
objections, adopt the R&R, and dismiss Wedington's
petition without prejudice.
the Court may grant a certificate of appealability only where
a petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The petitioner must show that “the issues
are debatable among reasonable jurists, a court could resolve
the issues differently, or the issues deserve further
proceedings.” Flieger v. Delo, 16 F.3d 878,
883 (8th Cir. 1994); see also Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). For purposes of
appeal under § 2253, the Court finds that Wedington has
not shown that reasonable jurists would find the issues
raised in his habeas petition debatable, that some other
court would resolve the issues differently, or that the
issues deserve further proceedings. Therefore, the Court
declines to grant a certificate of appealability.
on the foregoing, and all the files, records, and proceedings
herein, IT IS HEREBY ORDERED that:
Court OVERRULES Wedington's Objections
to the R&R [Docket No. 7], and ADOPTS
the Report and Recommendation of the Magistrate Judge [Docket
Wedington's action is DISMISSED WITHOUT
the purpose of appeal, the Court does not grant a certificate
JUDGMENT BE ...