United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. Rogers, III., United States Magistrate Judge
an action filed by a pro se litigant who indicates that he is
an immigration detainee.Because Petitioner cannot leave the
facility where he is detained on his own, in the event that a
limitations issue arises, Petitioner shall have the benefit
of the holding in Houston v. Lack, 487 U.S. 266
(1988) (prisoner's pleading was filed at the moment of
delivery to prison authorities for forwarding to District
Court). Under Local Civil Rule 73.02(B)(2) of the United
States District Court for the District of South Carolina,
pretrial proceedings in this action have been referred to the
assigned United States Magistrate Judge.
undersigned is authorized to review habeas petitions for
relief, as well as § 1983 actions, and submit findings
and recommendations to the district judge. Petitioner's
case is subject to dismissal for failure to state a claim
upon which relief can be granted.
established local procedure in this judicial district, a
careful review has been made of the pro se pleadings
and motion to proceed in forma pauperis pursuant to
the procedural provisions of 28 U.S.C. § 1915 and the
Anti-Terrorism and Effective Death Penalty Act of 1996. The
review has been conducted in light of the following
precedents: Denton v. Hernandez, 504 U.S. 25 (1992);
Neitzke v. Williams, 490 U.S. 319, 324-25 (1989);
Haines v. Kerner, 404 U.S. 519 (1972); Nasim v.
Warden, Maryland House of Correction, 64 F.3d 951 (4th
Cir. 1995)(en banc); Todd v. Baskerville,
712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582
F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro
se litigant, and thus his pleadings are accorded liberal
construction. Erickson v. Pardus, 551 U.S. 89, 94
(2007)(per curiam); Cruz v. Beto, 405 U.S.
319 (1972). Even under this less stringent standard, the
petition is subject to summary dismissal. The requirement of
liberal construction does not mean that the court can ignore
a clear failure in the pleading to allege facts which set
forth a claim currently cognizable in a federal district
court. Weller v. Department of Social Services, 901
F.2d 387, 390-91 (4th Cir. 1990).
this court is charged with screening Petitioner's lawsuit
to determine if “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court.” Rule 4 of Rules
Governing Section 2254 Cases in the United States District
Courts. Following the required initial review, it is
recommended that the Petition/Complaint submitted in this
case should be dismissed for failure to state a claim.
Procedural History and Facts
filed a handwritten “Petitioner Writ of  28 U.S.C.
2241 and 2242 Release out CRCC” on November 7, 2016.
Plaintiff named as Respondents Correct Care Recovery
Solutions and Columbia Regional Care Center. Petitioner was
housed at that location in Columbia, South Carolina, when he
mailed the Petition. ECF No. 1. The Petition stated it was a
writ of habeas corpus challenging the unlawful and wrongful
housing by Immigration and Custom Enforcement(ICE).
Petitioner states he is being overheld.
initially filed, the Petition was framed as a habeas action
by Petitioner. On November 16, 2016, Petitioner was ordered
to completely fill out a AO242 form, Petition for a Writ of
Habeas Corpus under 28 USC § 2241 and to submit an
in forma pauperis application. Petitioner did so on
December 12, 2016. Under question eleven, Petitioner stated
this case concerns an immigration proceeding and gave the
following pertinent information. Petitioner's removal
order was dated January 26, 2016 and he appealed to the Board
of Immigration Appeals on March 28, 2016. His case was
pending and the issue raised was wrongful detention and
detention more than six months.
question five of the Petition form asks what are you
challenging in this petition and has the option to select
immigration detention. Petitioner did not select immigration
detention, but selected other and stated he was being
grounds for the Petition, Petitioner states he did not
consent to medical treatment, was being forced to take
medication, and he was wrongfully detained. As the request
for relief, the Petition form states monetary compensation.
has created a concoction of two very different claims. Some
of his statements reference habeas and other statements can
be construed to allege a § 1983 claim. This court will
analyze the Petition/Complaint under each framework; both
claims are subject to summary dismissal.
if, under a liberal construction, the Petition in this case
is treated as a § 2241 action, it is subject to summary