Ricketts v. Ciccone

• Decision Date: 05 February 1974
• Docket Number: Civ. A. No. 73 CV 580-S.
• Citation: 371 F. Supp. 1249
• Court: U.S. District Court — Western District of Missouri
• Parties: John Dwight RICKETTS, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.

371 F. Supp. 1249

John Dwight RICKETTS, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.

Civ. A. No. 73 CV 580-S.

United States District Court, W. D. Missouri, S. D.

February 5, 1974.

Raymond C. Conrad, Jr., Asst. Federal Public Defender, Springfield, Mo., for petitioner.

Charles B. Faulkner, Sp. Asst. U. S. Atty., Springfield, Mo., for respondent.

ORDER DENYING PETITIONER'S MOTION TO REVIEW ORDER OF NOVEMBER 29, 1973, SUSTAINING EXCEPTIONS TO THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE AND FINAL JUDGMENT GRANTING PETITION FOR A WRIT OF HABEAS CORPUS

WILLIAM H. BECKER, Chief Judge.

Pursuant to the governing law and in accordance with Section B.1.b.(5) of Local Rule 26 of the United States District Court for the Western District of Missouri, the United States Magistrate has submitted to the undersigned Judge a report and recommendation that the petition herein for a writ of habeas corpus be denied.

On December 14, 1973, petitioner filed herein a pro se "Motion to Review the Order of the United States District Court Filed November 29, 1973," therein stating, in part, as follows:

"In the Order in question herein, the Court said, `. . . (p)etitioner appears to be challenging the condition of his confinement, we will construe this action as a petition for writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Wilwording v. Swenson, 404 U.S. 249 92 S.Ct. 407, 30 L.Ed.2d 418 (1971).'"

Petitioner further states and contends that he "does not believe that the Remedy and Relief he seeks in his original motion can be granted by a writ of habeas corpus" and therefore he requests that this Court ". . . retitle it as a Request for Injunctive Relief Under Civil Rights Statutes 42 USC Section 1983 and 28 USC 1343."

Petitioner's "Motion for Declaratory Judgment and Injunctive Relief," which was filed on November 23, 1973, was properly treated as a petition for a writ of habeas corpus in that petitioner seeks to challenge the legality or constitutionality of his otherwise lawful confinement and also the legality of his place of confinement. The appropriateness of treating prisoner petitions for declaratory, injunctive, or other extraordinary relief with respect to conditions of confinement, as petitions for writs of habeas corpus, has been clearly stated by the Supreme Court of the United States in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) and Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), and by this Court in Ramsey v. Ciccone, 310 F. Supp. 600 (W.D.Mo.1970). Section 1983, Title 42, United States Code, is not applicable to complaints by federal prisoners of actions by federal officers or agents. Therefore, petitioner's pro se "Motion to Review the Order of the United States Court Filed November 29, 1973" will be denied.

On December 21, 1973, the undersigned Judge received a letter dated December 19, 1973, from the petitioner in respect to the above-entitled action. In his letter, petitioner requested that he be provided ". . . an extra couple of days so that he might compose a halfway intelligent objection and exception." On December 21, 1973, an order was entered granting petitioner's pro se motion for an extension of time and the time within which to file exceptions was extended to and including December 28, 1973.

On December 28, 1973, petitioner filed herein his timely pro se exceptions to the report and recommendation of the United States Magistrate, therein stating as follows:

"Now comes JOHN DWIGHT RICKETTS, Petitioner pro se, in the above styled and numbered cause and objects to the Report and Recommendation of United States Magistrate that petition herein for a Writ of Habeas Corpus be Denied, and especially that portion which states:

`Petitioner therefore sought relief in the form of an order restraining respondent from transferring petitioner to the United States Penitentiary, Terre Haute, Indiana (whence he was originally transferred to the Medical Center) or "to anywhere but a `dry' climate" and then only after he has received "further treatment" at the Medical center.' (emphasis added)

A

Petitioner actually asked for:

`1.) That the Respondent(s) be restrained/prevented from transferring Movant to Terre Haute, Indiana.

2.) That the Respondent(s) be restrained/prevented from transferring Movant to anywhere but a "dry" climate.'

Or

`3.) That the Movant remain at the Medical Center for Federal Prisoners for further treatment until such time as he can be transferred to a "dry" climate.' (emphasis added)

II

"Petitioner further objects and excepts to the Report in that it relies upon Local Rule 26 for authority and jurisdiction when it has been ruled in Wedding v. Wingo; CA6 8/13/73 483 F.2d 1131, that:

`to permit Magistrates to hold the hearings "runs directly counter to the well-established doctrine of statutory construction denominated ejusdem generis. This doctrine directs that a general provision of a statute will be controlled and limited by subsequent statutory language more specific in scope" Thus (sic) a habeas petition heard by a magistrate didn't have the hearing to which he is entitled by statute.' Id.

III

"Petitioner further objects and excepts to the Report's reliance upon Preiser v. Rodriguez, 411 U.S. 475 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) and Wilwording v. Swenson, 404 U.S. 249 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) as reason for changing Petitioner's original motion for injunctive relief to a habeas corpus petition because:

A

"Petitioner believes that upon review of these two cases the Court will find that Petitioner's original request for injunctive relief is the remedy see attached copy (Exhibit `A') of Petitioner's Motion to Review the Order of the United States District Court Filed November 29, 1973.

IV

"Petitioner further objects and excepts to the Report in that he was:

A

"Denied effective assistance of counsel by the usage of the Public Defenders office who because of their overwhelming caseload only discussed this case with Petitioner for a maximum of ten minutes.

B

"and who refused to ask all of the questions of the witnesses that Petitioner felt was (sic) pertinant (sic) to his case.

V

"Petitioner further objects and excepts to the Report, and especially portion in footnote # 3 which states:

`The first paragraph of the response is an obvious error. Petitioner does not suffer from a deviated nasal septum, but chronic rhinitis caused by an allergy.'

A

"Petitioner avers that his medical record will show that he does indeed have a `deviated nasal septum' as well as suffering from allergies, chronic rhinitis, chronic sinusitis, and sometimes a secondary sinus infection.

B

"Petitioner believes that this is an excellent example of the Magistrates (sic) inability to grasp the complete facts of the situation.

VI

"Petitioner futher (sic) objects and excepts to the Report, and especially that portion of the Findings of Fact which:

A

"Perpetrates the false impression that the `desensitizing allergin' is a swift and sure cure for all of Petitioners (sic) sinus and allergy problems. This is a completely erronious (sic) conclusion that could only be conceived in complete ignorance of the testimony of Dr. Fraser, which the record will show, said that there was `no guarantee' the desensitizing allergin would work and that it could `take two or three years' to work.

VII

"Petitioner further objects and excepts to the Report, and especially that portion of the Findings of Fact which:

A

"Refers to the surmises and opinions of Petitioner's caseworker, Judson Hughes, as `Fact'. Petitioner would submit that the opinion that the Petitioner `cannot' be transferred to an institution in a dry climate is a blatant falsehood conceived to hide the fact that Judson Hughes will not consult even one institution located in a dry climate to find out whether or not they would accept the Petitioner.

VIII

"Petitioner further objects and excepts to the Report, and especially that portion which refers to the `review committee' as being representative of meaningful due process.

A

"The Federal Penal system in general, and the Medical Center in particular are both notorious for their inability to reverse themselves without outside intervention.

IX

"Petitioner further objects and excepts to the Report, and especially that portion of the Findings of Fact which states:

`The humidity differential between Terre Haute, and Southwestern United States is not great;'

A

"This is another unfortunate, all-conceived surmise of the Petitioner's caseworker, Judson Hughes, which has been ineptly contrued (sic) as `Fact'. In Terre Haute, Indiana, the average humidity is around 80-85% yearround; while in El Paso, Texas, the average humidity is approximately 20-25% year-round.

X

"Petitioner further objects and excepts to the Report, and especially that portion in footnote # 5 which states:

`Other pertinent considerations were made by the team, but these were the reasons given in testimony in this court why it was decided to retransfer petitioner to Terre Haute.'

"There is no factual basis for this grand assumption other than that which was related to the Court by Judson Hughes. Unless the Magistrate would care to enlighten the Court and the Petitioner by introducing additional testimony to show what the `other pertinent considerations' are, they should not be considered nor weighed as evidence.

XI

"Petitioner further objects and excepts to the Report, and especially that portion which states:

`Petitioner's retransfer to Terre Haute Penitentiary will not deny him any federal right.'

A

"Petitioner submits that he has been in Federal custody for over twenty months and at the Medical Center for over four months. Petitioner would also submit that the prison officials have been aware of Petitioner's medical problems since September of 1972, (See Exh

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