United States District Court, S.D. Illinois
August 2, 2005.
JOHN J. McCARTHY, Petitioner,
WARDEN at USP MARION, Respondent.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM AND ORDER
The Court dismissed this action, finding that 28 U.S.C. § 2241
was not the proper method for Petitioner to challenge the quality
of medical care he receives at U.S.P. Marion. He has now filed a
motion for preliminary injunction (Doc. 4), as well as a motion
to alter judgment (Doc. 5)
A motion to alter or amend judgment may only be granted if
movant shows there was mistake of law or fact or presents newly
discovered evidence that could not have been discovered
previously. Matter of Prince, 85 F.3d 314 (7th Cir. 1996),
reh'g and suggestion for reh'g en banc denied, cert. denied
117 S.Ct. 608; Deutsch v. Burlington Northern R. Co., 983 F.2d 741
(7th Cir. 1993). In his motion, Petitioner claims that the Court
misconstrued his petition as merely challenging his medical care.
He argues that his petition was actually challenging his transfer
to U.S.P. Marion, a transfer he claims was undertaken in
violation of his rights to procedural due process under the Fifth
Amendment. He relies, in part, on a recent Supreme Court case
that held that in Ohio, inmates have a protected liberty interest
in avoiding assignment to the state's supermax prison. Wilkinson
v. Austin, ___ U.S. ___, 125 S.Ct. 2384, 2394-95 (2005). Upon review of the petition (Doc. 1), the Court finds no
specific claim regarding Petitioner's transfer to Marion. The
only statement that comes close to making such a claim is on page
2 of the petition, in paragraph 4: "McCarthy is held in atypical
conditions of confinement and was never accorded due process
furthermore federal law and regulations 28 C.F.R. Part V et seq.
accord process that the BOP and respondent never followed."
Although a Court is required to construe pro se pleadings
liberally, it would be a far stretch for a Court to imagine a
challenge to a prison transfer based on this brief statement,
particularly when every other statement in the petition involves
the quality of medical care.
The Court remains persuaded that its ruling dismissing the case
was correct. Therefore, the motion to alter judgment is DENIED.
Because this case remains closed, the motion for preliminary
injunction is MOOT.
IT IS SO ORDERED.
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