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McGowan v. Epps

United States District Court, N.D. Mississippi, Greenville Division

September 21, 2018

MICHAEL MCGOWAN PLAINTIFF
v.
CHRISTOPHER EPPS, et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation of United States Magistrate Judge David A. Sanders, Doc. #11, and Michael McGowan's objections to the same.

         I Relevant Background and Procedural History

         On November 12, 2001, Michael McGowan began serving a fifteen-year sentence in the Mississippi Department of Corrections (“MDOC”) for aggravated assault, simple assault-police officer, armed robbery, and burglary of an occupied dwelling. Doc #1 at 13. On August 24, 2007, MDOC's Commissioner requested permission from the Federal Bureau of Prisons (“BOP”) to transfer McGowan to the “care and custody” of BOP. Id.[1] According to MDOC:

In the past three years, Inmate … has received numerous major rule violation reports which threatened the safety, security, and orderly running of some of the most secure Mississippi Department of Corrections Facilities. These violations include but are not limited to: possessing sharpened instruments, setting of fires, possessing homemade handcuff keys, and attempting to assault staff with sharpened instruments. In addition, Inmate … has stabbed inmates, assaulted staff with sharpened instruments and threatened to kill MDOC employees.

Id. (redactions omitted). On November 2, 2007, BOP replied to MDOC, “Based on inmate McGowan's extreme violent behavior, and your need to remove him from your correctional system, we have agreed to accept him into the Bureau of Prisons. Accordingly, he will be housed at our United States penitentiary in Terre Haute, Indiana.” Id. at 14.

         By 2016, McGowan was incarcerated in the Maximum Security United States Penitentiary in Florence, Colorado (“ADMAX”), and sought to return to MDOC custody. Id. at 12. On August 4, 2016, MDOC informed McGowan that his “request to return to MDOC custody is … denied due to [his] institutional behavior on record.” Id.

         On or about October 12, 2016, [2] McGowan filed a “Complaint Challenging Conditions of Confinement” in the United States District Court for the Northern District of Mississippi. Doc. #1 at 11. In his complaint, McGowan seeks (1) a declaration that his constitutional rights are being violated; (2) an injunction preventing the defendants from keeping him in federal custody; (3) an order directing that he be returned to MDOC custody; and (4) compensatory and punitive damages. Id.

         On August 22, 2017, United States Magistrate Judge David A. Sanders issued a Report and Recommendation concluding that most of McGowan's claims were untimely filed and that McGowan's “claims regarding the propriety of his transfer into federal custody, equal protection, retaliation, and denial of access to the court should be dismissed for failure to state a claim upon which relief could be granted.” Doc. #11 at 15. However, Judge Sanders recommended that McGowan's “claims arising out of events occurring in other states should be dismissed without prejudice for want of proper venue.” Id. The Report and Recommendation also states that, regarding the claim for denial of access to the courts, a “strike” under 28 U.S.C. §1915(g) should be assessed because by the time McGowan arrived at ADMAX, he had access to the legal materials he needed through a legal research contract between the facility and the University of Wisconsin Law School. Id. at 14-15.

         On or about August 29, 2017, McGowan filed objections to the Report and Recommendation, Doc. #16, along with an “Order to Show Cause for An Preliminary Injunction & A Temporary Restraining Order, ” Doc. #13, which reasserts his grievances against MDOC and BOP. On or about September 11, 2017, McGowan filed supplemental objections to the Report and Recommendation. Doc. #17. On July 31, 2018, the Court ordered the parties to show cause why this case should not be transferred to the District of Colorado. Doc. #19. On or about August 15, 2018, McGowan objected to transfer of the case, arguing that the District of Colorado would not have jurisdiction over the Mississippi defendants he has sued. Doc. #23 at 2.

         II Standard

         Where objections to a report and recommendation have been filed, a court must conduct a

de novo review of those portions of the … report and recommendation to which [a] Defendant[] specifically raised objections. With respect to those portions of the report and recommendation to which no objections were raised, the Court need only satisfy itself that there is no plain error on the face of the record.

Gauthier v. Union Pac. R.R. Co., 644 F.Supp.2d 824, 828 (E.D. Tex. 2009) (citing Douglass v. United Serv. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)) (internal citation omitted). Accordingly, the Court will conduct a de novo review the Report and Recommendation where McGowan has objected and review the remainder of the Report and Recommendation for plain error.

         III ...


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