United States District Court, N.D. Mississippi, Greenville Division
M. BROWN UNITED STATES DISTRICT JUDGE
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.
Relevant Background and Procedural History
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. 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.
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.”
about October 12, 2016,  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.
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.
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.
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.