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Rochelle v. Turner

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

December 28, 2018

ARVIN DALE ROCHELLE PETITIONER
v.
MARSHAL TURNER, et al. RESPONDENTS

          ORDER ADOPTING REPORT AND RECOMMENDATION

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation of United States Magistrate Judge Jane M. Virden. Doc. #5.

         I

         Procedural History

         On or about February 21, 2018, Arvin Dale Rochelle filed a petition for a writ of habeas corpus in this Court, claiming that prison staff retaliated against him for filing grievances. Doc. #1 at 6. Rochelle asks the Court to reinstate his “previous job[, ] housing unit, [and] bed, ” to “mak[e] him whole again as if the retaliation never occurred.” Id. at 17.

         On April 2, 2018, United States Magistrate Judge Jane M. Virden issued a Report and Recommendation recommending that Rochelle's petition be dismissed for failure to state a claim upon which relief can be granted. Doc. #5 at 1. Judge Virden determined that Rochelle had not raised a “challenge [to] the fact or duration of his confinement, ” which must be litigated through a habeas petition under 28 U.S.C. § 2254, but rather raised a challenge to the conditions of his confinement, which must be litigated under 42 U.S.C. § 1983. Id. at 3. On April 16, 2018, the Court received Rochelle's timely objection to the Report and Recommendation. Doc. #8.

         II

         Standard of Review

         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 of the part of the Report and Recommendation to which Rochelle has specifically raised objections and will review the remainder for plain error.

         III

         Analysis

         In his objection, Rochelle asserts that Judge Virden erred in determining that he could not pursue his conditions of confinement claim through a petition for a writ of habeas corpus, arguing that “habeas relief does indeed lie for this ...


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