Opinion
C. A. 4:24-1686-SAL-TER
04-12-2024
Roy Lee Wade, Petitioner, v. Department of Mental Health, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Petitioner, proceeding pro se and in forma pauperis, is civilly committed as a Sexually Violent Predator to the South Carolina Department of Mental Health under the Sexually Violent Predator Act, SC Code Ann. §§ 44-48-10 to 44-48-170. Petitioner captioned this case as “State of South Carolina, County of Aiken” and not this court; Petitioner captioned the case number as his state case, 2023-CP-0202004. (ECF No. 1 at 1). Petitioner states this action is a “Writ for Compassionate Release” under 18 U.S.C. § 3582. (ECF No. 1 at 1). Petitioner asserts BOP is not the gatekeeper of § 3582. Petitioner is mistaken. (ECF No. 1 at 2). Section 3582, a federal criminal statute, is not applicable to those held under state law and no relief is available for Petitioner under this statute. See Dodl v. Younce, 2023 WL 4839598, at *1 (4th Cir. July 28, 2023); Nguyen v. Unknown, 2021 WL 326157, at *1 (W.D. Va. Feb. 1, 2021)(finding dismissal to be without prejudice so Petitioner could pursue his request in state court); Ansel v. Cooper, No. 3:10-CV-548-RJC, 2012 WL 3619266, at *3 (W.D. N.C. Aug. 21, 2012); Taylor v. United States, 2009 WL 2436581, at *1 (E.D. Va. Aug. 7, 2009).
This action is subject to summary dismissal as no relief is available for state civil detainee Petitioner under § 3582.
The Court need not engage in an extended discussion of Petitioner's theories for relief. See Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996)(emphasizing that “abbreviated treatment” is consistent with Congress's vision for disposition of frivolous or “insubstantial claims”)(citing Neitzke v. Williams, 490 U.S. 319, 324 (1989)); Wilson v. Lindsey, 2023 WL 1997070, at *2 (E.D. Va. Feb. 14, 2023), aff'd, 2023 WL 4839386 (4th Cir. July 28, 2023).
RECOMMENDATION
It is recommended that the District Court dismiss this action without prejudice under § 1915(e) and § 1915A and without issuance and service of process.
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).