Opinion
9:22-CV-1072
12-26-2023
MILKO VILOMAR BORGE, Petitioner, v. D. CHRISTENSEN, Respondent.
MILKO VILOMAR BORGE Petitioner, Pro Se Loretto FCI Inmate Mail/Parcels HON. CARLA B. FREEDMAN EMER M. STACK, ESQ. United States Attorney for the Ass't United States Attorney Northern District of New York Attorneys for Respondent
MILKO VILOMAR BORGE Petitioner, Pro Se Loretto FCI Inmate Mail/Parcels
HON. CARLA B. FREEDMAN EMER M. STACK, ESQ. United States Attorney for the Ass't United States Attorney Northern District of New York Attorneys for Respondent
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD UNITED STATES DISTRICT JUDGE
On October 17, 2022, pro se petitioner Milko Vilomar Borge (“petitioner”) filed this action seeking habeas corpus relief. Dkt. No. 1. After an initial review of the petition, the warden of the facility where petitioner is being held in custody (“respondent”) was ordered to respond, Dkt. No. 4, and timely opposed the petition, Dkt. No. 7. Petitioner did not file a reply. Dkt. No. 9.
On December 5, 2023, U.S. Magistrate Judge Andrew T. Baxter advised by Report & Recommendation (“R&R”) that the petition should be denied and dismissed with partial leave to amend. Dkt. No. 10.
Petitioner has not filed objections, and the time in which to do so has expired. See Dkt. No. 10. Thus, upon review for clear error, the R&R is accepted and will be adopted. See FED. R. CIV. P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ACCEPTED;
2. The petition is DISMISSED for lack of subject matter jurisdiction;
3. Petitioner shall have forty-five days in which to file an amended pleading to state possible claims for damages “arising from the conditions of confinement/medical care at FCI Ray Brook pursuant to Bivens ”;
4. Any amended pleading must conform with the instructions set forth in Judge Baxter's December 5, 2023 Report & Recommendation;
5. If plaintiff timely files an amended pleading, the file shall be returned to Judge Baxter for further review; and
6. If plaintiff does not timely file an amended pleading, the Clerk is directed to enter a judgment accordingly and close this action without further Order of this Court.
IT IS SO ORDERED.