United States District Court, N.D. Mississippi, Greenville Division
ORDER ADOPTING REPORT AND RECOMMENDATION
M. BROWN, UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation of United States
Magistrate Judge Jane M. Virden. Doc. #5.
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.
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.
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.
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