The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling
DENNIS J. JOHNSON,
Petitioner,
V. Civil Action No. 5:23-CV-26
Judge Bailey
WARDEN BROWN,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
The above referenced case is before this Court upon Magistrate Judge Mazzone’s
recommendation that petitioner's Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241
[Doc. 1] be denied and dismissed without prejudice. For the reasons that follow, this Court
will adopt the R&R.
|. BACKGROUND
Magistrate Judge Mazzone’s Report and Recommendation (“R&R”) accurately
summarizes the background of this case:
On January 12, 2011, petitioner was charged in a three-count indictment in
the Middle District of Florida. On April 21, 2011, petitioner pleaded guilty to
two counts: Count One, conspiracy to possess with intent to distribute 5
kilograms or more of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), &
841(b)(1)(A)(ii), and Count Two, possession of a firearm in furtherance of a
drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C.
§ 2. On July 18, 2011, petitioner was sentenced to 188 months as to Count
One and 60 months as to Count Two, to be served consecutively to Count
One. According to the Bureau of Prison’s (“BOP”) website, petitioner's
projected release date, via good conduct time, is October 15, 2028.
In his petition, petitioner alleges that his constitutional rights have been
violated; he alleges that an officer “Ice” made harassing sexual comments
toward him, destroyed his religious materials and shrine in retaliation for not
engaging in sexual conversation, and that other BOP staff covered up the
_incident. For relief, he asks that criminal charges be brought against the
officer for attempted sexual assault and sexual harassment and against
other staff for covering up a criminal offense.
[Doc. 12 at 2].
Il. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). Nor is this Court required to conduct a de novo review when the party makes
only “general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
In addition, failure to file timely objections constitutes a waiver of de novo review and
the right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889
F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984). Pro se filings must be liberally construed and held to a less stringent standard than
those drafted by licensed attorneys, however, courts are not required to create objections
where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14)
days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules
of Civil Procedure. Petitioner filed his objections [Doc. 16] on March 20, 2023.
Accordingly, this Court will review the portions of the R&R to which objection was filed
under a de novo standard of review. The remainder of the R&R will be reviewed for clear
error.
lll. DISCUSSION
In the R&R, Magistrate Judge Mazzone concludes that Mr. Johnson’s petition fails
to assert a claim for which relief can be granted under 28 U.S.C. § 2241 as Mr. Johnson
does not challenge the validity of his confinement or seek speedier release from
confinement. [Doc. 12 at 4]. Instead, Mr. Johnson seeks to have criminal charges brought
against the BOP officers. [Id].
Mr. Johnson objects to Magistrate Judge Mazzone’s R&R claiming that the petition
challenges both the conditions of his confinement and the BOP policy statement
concerning the established policy for PREA cases that the administration officials fail to
follow. [Doc. 16 at 2].
Magistrate Judge Mazzone is correct—Mr. Johnson’s claims are inappropriate for
consideration under § 2241. A petition filed pursuant to § 2241 is the appropriate method
for a prisoner to challenge the fact and length of his confinement, but generally not the
conditions of that confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973).
“(Immediate release or speedier release from [ ] confinement [is] the heart of habeas
corpus.” Id. at 498. In the present case, Mr. Johnson alleges his constitutional rights have
been violated and seeks to have criminal charges brought against BOP staff. See [Doc. 1].
The petition does not challenge the validity of his confinement or seek a speedier release
from confinement. Instead, Mr. Johnson seeks to have criminal charges brought against
BOP officers. Because Mr. Johnson seeks relief that does not affect the fact or duration
of his confinement, his claim is inappropriate for consideration under § 2241."
A de novo review of Magistrate Judge Mazzone’s R&R and the grounds in support
of petitioner's objections leads this Court to conclude that petitioner has failed to assert a
claim for which relief can be granted under 28 U.S.C. §2241. Accordingly, petitioner's
objections are overruled.
‘ Mr. Johnson also asks this Court for leave to amend his petition. [Doc. 16 at 2].
Mr. Johnson states that he wants to challenge the inadequacy of the BOP’s policy
statement concerning PREA and the conditions of his confinement as far as the physical
and psychological abuse from the alleged sexual assault committed by the officers. [Id].
Amending his complaint to add these facts will not change the fact that the relief he is
seeking does not affect the fact or duration of his confinement. Accordingly, a § 2241
petition is not the correct avenue for relief for Mr. Johnson.
IV. CONCLUSION
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 12] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. Accordingly, the petitioner's
objections [Doc. 16] are OVERRULED. This Court ORDERS that the § 2241 petition
[Doc. 1] be DENIED and DISMISSED WITHOUT PREJUDICE. Additionally, petitioner's
pending Motions [Docs. 2 & 7] are DENIED AS MOOT.
This Court further DIRECTS the Clerk to STRIKE this case from the active docket
of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: March 22, 2023.
L PRESTON BAILEY A
UNIT ATES DISTRICT JUDGE