United States District Court, D. South Carolina, Florence Division
James A. Spears, Petitioner,
Warden FCI Williamsburg, Respondent.
OPINION & ORDER
TIMOTHY M. CAIN, District Judge.
matter is before the court on Petitioner's Petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. In
accordance with 28 U.S.C. § 636(b) and Local Rule
73.02(B)(2), D.S.C., all pre-trial proceedings were referred
to a magistrate judge. On April 25, 2016, Magistrate Judge
Kaymani D. West filed a Report and Recommendation
(Report"), recommending Petitioner's Petition be
dismissed without prejudice. (ECF No. 17). Petitioner timely
filed objections to the Report on May 11, 2016. (ECF No. 22).
Magistrate Judge makes only a recommendation to the court.
The Report has no presumptive weight and the responsibility
to make a final determination in this matter remains with
this court. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). In making that determination, the court
is charged with conducting a de novo review of those portions
of the Report to which either party specifically objects.
See 28 U.S.C. § 636(b)(1). Then, the court may
accept, reject, or modify the Report or recommit the matter
to the magistrate judge. Id.
the court addresses the merits of Petitioner's
objections, the court must address the profanity and abusive
language contained in his objections. While Petitioner may be
frustrated, this is no excuse for malicious and abusive
comments, and the court will not tolerate them. "Due to
the very nature of the court as an institution, it must and
does have an inherent power to impose order, respect,
decorum, silence, and compliance with lawful mandates. This
power is organic, without need of a statute or rule for its
definition, and it is necessary to the exercise of all other
powers." United States v. Shaffer Equip. Co.,
11 F.3d 450, 461 (4th Cir. 1993). Although recognizing the
leniency typically accorded to pro se parties, "[t]his
court simply will not allow liberal pleading rules and pro se
practice to be a vehicle for abusive documents. Our pro se
practice is a shield against the technical requirements of a
past age; it is not a sword with which to insult a trial
judge.'" Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 841 (10th Cir. 2005) (citing
Theriault v. Silber, 579 F.2d 302, 303(5th Cir.
Rule 11 of the Federal Rules of Civil Procedure provides that
[b]y presenting to the court a pleading, written motion, or
other paper... an unrepresented party certifies that to the
best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances
[that] it is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation.
11(b). The court considers the profanity and abusive language
used by Petitioner in his Objections to be harassment and
sanctionable under Rule 11. In order to impose sanctions sua
sponte under Rule11, a party must be given notice that
sanctions are being considered. Fed.R.Civ.P. 11(c)(1)(B).
Sanctions can include striking the offensive pleadings or
motions or dismissing the action. See Phillips
v. Carey, 638 F.2d 207, 208 (10th Cir. 1981) (holding
that "[i]f the complaint or other pleadings are abusive
or contain offensive language, they may be stricken sua
sponte under the inherent powers of the court.") (citing
Fed.R.Civ.P. 12(f)). See also Fed.R.Civ.P. 41(b).
Accordingly, Petitioner is advised that Rule 11 sanctions
will be considered in the future any time he submits
correspondence or pleadings containing offensive, abusive,
and/or threatening language.
Report, the magistrate judge reviewed the petition and claims
brought therein and determined that Petitioner did not allege
any plausible habeas claim because the relief requested would
not affect the duration of his sentence. (Report at 4). She
recommends that the court dismiss the habeas petition without
prejudice. In his objections, Petitioner contends that he did
not intend to file a habeas petition seeking a change in his
sentence. (Objections at 1). He contends that he filed a §
2241 habeas petition seeking relief for retaliation and
harassment by prison officials. Id.
2241 habeas motion is used to attack the manner in which a
sentence is executed. See 28 U.S.C. § 2241. In a §
2241 petition, the petitioner is challenging "the fact
or duration of his physical confinement, " or
"seeking immediate release or speedier release from that
confinement." Preiser v. Rodriguez, 411 U.S.
475, 498 (1973). On the other hand, issues raising the
conditions of confinement should be brought pursuant to
Bivens v. Six Unknown Named Agenst of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
court notes that Petitioner used the habeas form in filing
this action and referred to this as a habeas action in his
filings with the court. (ECF Nos. 1 and 5, and Objections at
1). However, Petitioner's § 2241 petition presents a
challenge to the conditions, rather than the fact or
duration, of his confinement. Clearly, Petitioner's
claims are not proper in a habeas action and should be
alleged in a Bivens action - as the magistrate judge
notes in her Report. (Report at 3-4). Indeed, Petitioner does
not challenge this conclusion in his objections to the
Report. He does, however, object to the dismissal of this
action. After review, rather than dismiss the action as
recommended by the magistrate judge, the court finds that
Petitioner should be given the opportunity to bring his
claims in a Bivens action. This would require
Petitioner to submit his claims on the proper forms and with
the appropriate filing fee. Therefore, the court
recommits this matter to the magistrate judge for further
handling consistent with this order.
on the foregoing, the court adopts in part and declines to
adopt in part the Report (ECF No. 17), and recommits the
matter to the Magistrate Judge for further handling.