Smith v. Wendt

Full title: GARY L. SMITH, Petitioner, v. KENVIN J. WENDT, Respondent

Court: United States District Court, N.D. West Virginia, at Martinsburg Division

Date published: Jun 30, 2006

Civil Action No. 3:06CV9, (BROADWATER) (N.D.W. Va. Jun. 30, 2006)

Opinion

Civil Action No. 3:06CV9, (BROADWATER).

June 30, 2006

ORDER ADOPTING REPORT AND RECOMMENDATION

W. BROADWATER, District Judge

On this day the above styled case came before the Court for consideration of the Report and Recommendation of Magistrate Judge James E. Seibert, dated April 25, 2006. Neither party filed any objections to the Report. After reviewing the above, the Court is of the opinion that the Magistr5ate Judge's Report and Recommendation (Document 9 in 3:06CV9) should be and is hereby ORDERED adopted.

The Court further ORDERS

1) petitioner's 28 U.S.C. § 2241 petition (Document 1) is now DENIED WITHOUT PREJUDICE so that petitioner may properly bring his claim under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 399 (1971);

2) respondent's Motion to Dismiss, Or Alternatively, For Summary Judgment (Document 6) is now GRANTED without prejudice; and

3) the Clerk is DIRECTED to STRIKE AND DISMISS this matter from the Court's active docket.

The Clerk is directed to transmit true copies of this Order to the petitioner and all counsel of