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Farabee v. Clarke

United States District Court, E.D. Virginia, Norfolk Division

February 12, 2018

BRIAN FARABEE, #1002739, Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, JACK BARBER, Commissioner, Virginia Department of Behavioral Health and Developmental Services, Respondents.

          AMENDED REPORT AND RECOMMENDATION

          Lawrence R. Leonard, United States Magistrate Judge

         This matter is before the Court on Petitioner Brian Farabee's ("Petitioner") pro se Petition for a Writ of Habeas Corpus ("Petition") filed pursuant to 28 U.S.C. § 2241, ECF No. 1, the Respondents Harold W. Clarke and Jack Barber's ("the Respondents") Motion to Dismiss, ECF No. 30, and Petitioner's Motion for Summary Judgment, ECF No. 37. There are also several outstanding Motions. See ECF Nos. 14, 15, 22, 28, 35, 37, 38, 47, 55, 58. The matter was referred for a recommended disposition to the undersigned United States Magistrate Judge ("undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. The undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Eastern District of Virginia Local Civil Rule 7(J).

         For the following reasons, the undersigned RECOMMENDS that the Respondents' Motion to Dismiss, ECF No. 30, be GRANTED; that Petitioner's Motion for Summary Judgment, ECF No. 37 be DENIED; and that the Petition, ECF No. 1, and the Amended/ Supplemental Petition, ECF No. 12 be DENIED AND DISMISSED.

         The undersigned further RECOMMENDS that Petitioner's Motion for Preliminary Injunction, ECF No. 14, be DENIED; Petitioner's Motion for Injunctive Relief by Declaratory Judgment, ECF No. 15 be DENIED; Petitioner's Motion for a Stay, ECF No. 17 be DENIED; Petitioner's Motion for Entry of Default Judgment, ECF No. 22 be DENIED; Respondents' Motion for Leave to File Out of Time, ECF No. 28 be GRANTED; Petitioner's Motion for Extension, ECF No. 35 be GRANTED; Petitioner's Motion for Summary Judgment, ECF No. 37 be DENIED; Petitioner's Motion for Dilation, ECF No. 38 be DENIED; Petitioner's Motion for a Stay, ECF No. 47 be DENIED; Petitioner's Motion for Reconsideration, ECF No. 55 be DENIED; and Petitioner's Motion for Evidentiary Hearing, ECF No. 58 be DENIED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner's relationship with the Virginia Department of Corrections ("VDOC") and the Commissioner of the Virginia Department of Behavioral Health and Developmental Services ("DBHDS") is long-standing. By the undersigned's review, Petitioner has been moved between state psychiatric institutions and VDOC facilities for nearly twenty years. The saga tracks its origins to May 3, 1999. On that day, in the Circuit Court of the City of Williamsburg and James City County, Virginia ("W&JCC Circuit Court"), Petitioner was adjudicated Not Guilty by Reason of Insanity ("NGRI") of an arson charge, whereupon he was remanded to the custody of the Commissioner of the Virginia Department of Behavioral Health and Developmental Services ("DBHDS") pursuant to Virginia Code § 19.2-182.3. ECF No. 57, attach. 3 ("Respondents' Exhibit 3") at 1. The W&JCC Circuit Court's civil commitment order and Petitioner's need for inpatient hospitalization is frequently reviewed: Virginia Code § 19.2-182.5 requires that when a person is committed to an inpatient hospital after being found NGRI, "the committing court shall conduct a hearing twelve months after the date of commitment to assess the need for inpatient hospitalization. . . at yearly intervals for five years and at biennial intervals thereafter." Va. Code Ann. § 19.2-182.5(a). Most recently, on November 8, 2013, the W&JCC Circuit Court entered an Order recommitting Petitioner to the custody of the Commissioner of VDBHDS for inpatient hospitalization after finding Petitioner to be mentally ill and in need of continued hospitalization, pending further Order of Court. ECF No. 57, attach. 3 at 2.

         Since the 1999 adjudication, Petitioner has spent the majority of his confinement at Central State Hospital ("CSH"), with intermittent periods of incarceration in the custody of VDOC due to convictions he incurs, generally for assaulting nurses or staff, while at CSH. For instance, on November 8, 2000, Petitioner pleaded guilty to two counts of malicious wounding against CSH staff in the Circuit Court of Dinwiddie County, Virginia ("Dinwiddie Circuit Court"). Although the W&JCC Circuit Court previously adjudicated Petitioner as NGRI for his 1999 arson charges, and Petitioner was confined at a state mental health hospital (CSH) at the time he incurred the malicious wounding charges, the Dinwiddie Circuit Court found that Petitioner was competent to stand trial, accepted his plea of guilty, and on November 11, 2000, sentenced him to twenty (20) years of incarceration in VDOC, suspending all but three (3) years and four (4) months and placing him on supervised probation for an indefinite period of time. ECF No. 32 at 4. In 2004, Petitioner was again convicted of malicious wounding in the Circuit Court of Sussex County, for which he was sentenced to ten years of incarceration on or about March 17, 2004. ECF No. 57, attach. 3 at 2 n.l. Thus, when Petitioner is not confined in the VDOC serving an active criminal sentence, he is otherwise committed to the custody of the Commissioner of VDBHDS, based on the frequently reviewed 1999 civil commitment Order of the W&JCC Circuit Court.

         In 2015, Petitioner was charged with assault and battery and destruction of property. On April 29, 2015, the Dinwiddie Circuit Court issued a show cause order to Petitioner alleging that he violated the conditions of good behavior by assaulting CSH staff members in the spring of 2015, and to demonstrate why his probation should not be revoked. ECF No. 32, attach. 1. The order was served on Petitioner on May 12, 2015 while Petitioner was a patient at CSH. ECF No. 57, attach. 3 at 1, 8. Approximately a week later, Petitioner filed his first state habeas petition with the Supreme Court of Virginia on May 20, 2015. Therein, Petitioner challenged his confinement pursuant to the Dinwiddie Circuit Court revocation proceedings. ECF No. 57, attach. 3 at 1. The Supreme Court of Virginia would later dismiss this first state habeas petition on December 15, 2016. ECF No. 57, attach. 3 at 2.

         On June 16, 2015 and July 19, 2015, the Dinwiddie Circuit Court ordered that a competency evaluation be performed on Petitioner, which was performed by Dr. Evan S. Nelson. ECF No. 57, attach. 3 at 1. On August 12, 2015, the Dinwiddie Circuit Court found Petitioner to be competent to proceed with the revocation proceeding. ECF No. 57, attach. 3 at 1. Pursuant to the August competency finding, on September 10, 2015, Petitioner was transported from CSH to Western State Hospital ("WSH"). ECF No. 57, attach. 3 at 2. Upon the Dinwiddie Commonwealth's Attorney's discovery of Petitioner's 2004 malicious wounding conviction in Sussex County, they apparently filed a supplemental letter with the Dinwiddie Circuit Court, and Petitioner was transferred from WSH to Meherrin River Regional Jail ("MRRJ") on October 14, 2015, and was ordered to remain there until his Dinwiddie Circuit Court revocation hearing on November 20, 2015. ECF No. 57, attach. 3 at 2.

         At the November 20, 2015 revocation hearing, the Dinwiddie Circuit Court found that Petitioner had violated the terms of his previously suspended sentences by virtue of his March 2004 conviction for malicious wounding in Sussex County. ECF No. 32 at 1-2; ECF No. 57, attach. 3 at 2. In the Dinwiddie Circuit Court's November 23, 2015 Revocation Order ("the Revocation Order"), the Court revoked Petitioner's previously suspended sentences, and re-suspended ten years on both sentences, ordering Petitioner to serve an active sentence of six (6) years and eight (8) months on each sentence, to be served concurrently. ECF No. 57, attach. 3 at 2. Petitioner appealed the Revocation Order to the Court of Appeals of Virginia, which was eventually denied on September 29, 2016, but Petitioner did not seek further review of the Revocation Order by appealing to the Supreme Court of Virginia.

         Instead, Petitioner proceeded to file multiple petitions for a writ of habeas corpus in both state and federal courts. Because the procedural background of this case is integral to the Court's disposition thereof, the undersigned will now proceed with a chronology of Petitioner's various endeavors to obtain habeas relief:

         A. State Habeas Petitions

         As previously noted, infra, shortly after receiving the Dinwiddie Circuit Court's show cause order for revocation proceedings, Petitioner filed his first state habeas petition with the Supreme Court of Virginia on May 20, 2015. Therein, Petitioner challenged his confinement pursuant to the Dinwiddie Circuit Court revocation proceedings. ECF No. 57, attach. 4 at 1-2. The Supreme Court of Virginia would later dismiss this first state habeas petition on December 15, 2016. ECF No. 57, attach. 4 at 1, 4.

         On November 2, 2016, Petitioner filed a second state habeas petition with the Supreme Court of Virginia, challenging the legality of his confinement pursuant to the Revocation Order upon which the Supreme Court of Virginia determined to be seventeen (17) grounds (Claims (I)-(XVII)), including: (I) The court did not have power to sentence him to VDOC; (II) Petitioner's sentence to VDOC violates the Double Jeopardy Clause; (III) Petitioner's sentence is ultra vires; (IV) The probation violation judgment violated the Petitioner's right to notice of the charge; (V) The show cause order was based on patently false information; (VI) Petitioner's commitment to VDOC violated Due Process; (VII) Petitioner's confinement and sentence constitute cruel and unusual punishment; (VIII) Petitioner's confinement and sentence violate due process; (IX) Petitioner's confinement and sentence violate the Americans with Disabilities Act; (X) Petitioner's confinement and sentence violate equal protection; (XI) Petitioner is actually innocent of the underlying charge of malicious wounding; (XII) Petitioner's guilty pleas to the original charges violated due process; (XIII) Petitioner's confinement with DOC violates Due Process; (XIV) Petitioner's confinement and sentence violate the speedy trial statute; (XV) Petitioner's counsel was ineffective at the November 20, 2015 revocation hearing; (XVI) Dinwiddie Circuit Court violated Due Process by not hearing Petitioner's pro se motions; (XVII) Petitioner's credit for time served was not properly calculated. See ECF No. 57, attach. 3, passim. On July 17, 2017, the Supreme Court of Virginia granted the Department of Corrections' Motion to Dismiss, and ultimately dismissed Petitioner's second state habeas petition. ECF No. 57, attach. 3.

         B. Federal Habeas Petitions (ECF Nos. 1, 12)

         On June 7, 2016, Petitioner filed a pro se Section 2241 Petition, ECF No. 1 ("the Petition"), with this Court, asserting four grounds ("Grounds 1-4") and challenging, among other things, his transfer to Red Onion State Prison following the November 2015 revocation proceedings in Dinwiddie Circuit Court and requesting that the Court order his transfer to a mental health facility operated by VDBHDS. ECF No. 1 at 8. The four grounds contained in the Petition include: (1) Petitioner is being held by VDOC in violation of the Due Process Clause; (2) Petitioner is being imprisoned in VDOC in violation of the Double Jeopardy Clause; (3) Petitioner has a Due Process right to be treated in a facility managed by VDBHDS; and (4) Petitioner's placement with VDOC violates the Americans with Disabilities Act ("ADA"). See ECF No. 57 at 4, ¶ 7. The specific relief requested in the Petition was for this Court to order "transport . . . forthwith back into the custody of the commissioner of the [V]DBHDS in inpatient hospitalization." Id. at 8. Essentially, the gravamen of Petitioner's complaint is that because the W&JCC Circuit Court has adjudicated Petitioner as requiring civil commitment for treatment of his mental illness, any time that Petitioner is transferred to any VDOC facility, or his care is otherwise assumed by an entity not under the control of the Commissioner of VDBHDS, his Constitutional rights are violated.

         On October 17, 2016, Farabee filed an Amended/Supplemental Section 2241 Petition, ECF No. 12 ("the Amended/Supplemental Petition"), in this Court, which raised eleven (11) additional claims ("Grounds 5-16")[1], but like the first Petition, ultimately requested that he be "transferred back to the custody of the Commissioner of the [V]DBHDS, or hospital thereof, pursuant to said standing committal ORDER by [W&JCC Circuit Court]." ECF No. 12 at 16. In the Amended/Supplemental Petition, Petitioner raises the following additional eleven claims: (5) the Dinwiddie Circuit Court exceeded its authority in violating the W&JCC Circuit Court Order requiring Petitioner to remain in inpatient hospitalization; (6) the Revocation Order of Dinwiddie Circuit Court violates Petitioner's right to be notified of the nature and cause of the offense against him and his Revocation Hearing Counsel never informed Petitioner of the nature and cause of the amended probation violation that resulted in Petitioner's suspended sentence being revoked[2]; (7) Petitioner's sentence arose out of an invalid guilty plea for offenses of which he is actually innocent because it was Petitioner who was attacked and the alleged victim, a CHS employee, was "breaking up the [f]ray;" (8) Petitioner's confinement in VDOC violates the Eighth Amendment's ban on cruel and unusual punishment because Petitioner has a liberty interest in receiving treatment for his medical needs, and "[t]he treatment of specific modality clinically recommended for [P]etitioner is only available in a hospital of [VDBHDS] and is unavailable in [VDOC], which has been recommended to treat his serious mental illness and suicidality [sic];" (9) Petitioner's confinement in VDOC violates Petitioner's Due Process Rights because he is not receiving required treatment for his mental illness and is being subjected to "constant isolation, bodily restraint, and other deprivations [and] restrictions on freedoms of everyday life;" (10) the state of Virginia has no punitive interest in confining Petitioner in VDOC because he is insane and may not be incarcerated as a criminal; (11) Petitioner's sentence and commitment in VDOC violates his right to a Speedy Trial because the November 20, 2015 Dinwiddie Circuit Court Revocation Order revoked his revocation based on an offense (Sussex County malicious wounding) he was convicted of in 2004; (12) the Dinwiddie Count Circuit Court's Revocation Order contains patently false information rendering Petitioner's confinement in VDOC unconstitutional; (13) Petitioner's confinement in VDOC violates his due process rights because he is still under an active commitment Order from W&JCC Circuit Court; (14) Petitioner is actually innocent of the malicious wounding offense; (15) Petitioner's sentence in the Dinwiddie Circuit Court arose out of guilty pleas that are invalid and unlawfully obtained because Petitioner was on high doses of antipsychotic and other mind-altering drugs when he was being tried for and entered the guilty pleas in Dinwiddie Circuit Court; and (16) Petitioner was denied his right to effective assistance of counsel at the November 2015 Revocation Hearing because the attorney that was appointed to represent Petitioner had previously had a conflict of interest in representing Petitioner, Petitioner had previously filed complaints against the attorney with the Virginia State Bar, and the attorney did not confer with Petitioner and advise him of the charges against him prior to the Revocation Hearing. ECF No. 12 at 1-16. In a subsequent filing, Respondents argue that

[a]lthough [Petitioner] filed a subsequent amended petition adding additional claims, those claims attack his probation revocation judgement and not the execution of his sentence. That amendment has not been authorized and the claims therein were not addressed in the [original] report and recommendation. As challenges to his convictions, the new claims are not appropriate to a § 2241 habeas. Moreover, these new claims are now under litigation in two cases Farabee v. Director, No. 2;l5cv256 and Farabee v. Clarke, 2:16cv661.

ECF No. 57 at 4 n.l. The Court will address its treatment of the claims raised in the Amended/Supplemental Petition in further detail, in Part II.C, infra.

         In the instant federal matter, on May 31, 2017, and in response to the Petition and the Amended/Supplemental Petition (ECF Nos. 1, 12), the Respondents filed their Rule 5 Answer, Motion(s) to Dismiss, Memorandum of Law in Support, and a Roseboro Notice. ECF Nos. 30-33. Therein, the Respondents argued that because Petitioner is a state prisoner attacking the lawfulness of his conviction, the Petition and Amended/Supplemental Petition were appropriately interpreted as seeking relief pursuant to 28 U.S.C. § 2254. ECF No. 32 at 2 (citing Acres v. Commonwealth, 2012 U.S. Dist. LEXIS 195259 (E.D. Va. Sept. 28, 2012)). Additionally, the Respondents argued that the Petition and Amended/Supplemental Petition should be denied and dismissed as second and successive because Petitioner had already previously litigated these claims and required the Fourth Circuit's permission before filing the instant Petition and Amended/Supplemental Petition. Because Petitioner had not sought and obtained such permission prior to initiating the instant habeas action, the Court was required to dismiss the matter. ECF No. 32 at 3-5 ("The Antiterrorism and Effective Death Penalty Act of 1996 restricted the jurisdiction of the district courts to hear second or successive applications for federal habeas corpus relief by prisoners attacking the validity of their convictions and sentences by establishing a 'gatekeeping' mechanism.") (citing Felker v. Turpin, 518 U.S. 651, 657 (1996); 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.")). On June 23, 2017 and July 3, 2017, Petitioner filed Responses in Opposition to the Respondents' Motion to Dismiss. ECF Nos. 36, 41. The Respondents did not file a Reply.

         C. Pending Section 2254 Habeas Petitions

         As the Respondents noted in their most recent Response, Petitioner has two other pending Section 2254 habeas cases in this Court.

         1. Case No. 2:15-cv-256

         The first federal habeas action is No. 2:15-cv-256, wherein Petitioner sought habeas relief pursuant to Section 2254. Specifically, Petitioner made the following claims: (I) Court orders to imprison Petitioner, removing him from the custody of the Commissioner of VDBHDS are void and unlawful because his order of commitment expressly states that he shall remain in inpatient hospitalization; (II) Incarceration by the Dinwiddie penal system violates Petitioner's rights against double jeopardy and his Fifth Amendment due process rights; (III) The state cannot simultaneously confine Petitioner in the state mental health system under the Commissioner's custody while he is in jail under VDOC's custody; (IV) Confining Petitioner in jail under the custody of the VDOC violates the Eighth Amendment cruel and unusual punishment clause because the VDOC does not have the medical or mental health resources to care for Petitioner; (V) Petitioner's probation officer made inaccurate statements as a basis to revoke his 2000 suspended sentence in her April 29, 2015 violation report to the Dinwiddie Circuit Court; (VI) Petitioner was denied the right to effective assistance of counsel throughout the 2015 revocation process; (VII) Counsel appointed to represent Petitioner in the November 20, 2015 revocation hearing had a conflict of interest and abandoned Petitioner's case in violation of Petitioner's right to counsel and his right to due process; (VIII) Judge Robert O'Hara, the Dinwiddie Circuit Court judge assigned to preside over Petitioner's 2015 probation revocation hearing had a conflict of interest because he presided over one of Petitioner's revocation hearings in 2003, and Petitioner filed complaints to the Judicial Inquiry and Review Commission against Judge O'Hara; (IX) The suspended sentence imposed on Petitioner in 2000 is unconstitutional because he is actually innocent of the charges due to his inability to knowingly and intelligently understand the proceedings against him; (X) Petitioner is actually innocent of the 2000 malicious wounding charges. Farabee v. Director, No. 2:15-cv-256, ECF No. 1. The undersigned found that the Petition in 2:15-cv-256 was a "mixed" petition because Petitioner had failed to exhaust all of his claims in the state courts, and therefore recommended dismissal without prejudice to allow Petitioner to refile it after exhausting his claims in state court, the District Court dismissed the matter with prejudice and denied reconsideration. Petitioner appealed to the Fourth Circuit, arguing that the District Court erroneously dismissed this first 2254 petition with prejudice. The Fourth Circuit agreed and vacated the District Court's Final Order dismissing the matter with prejudice and the Order denying reconsideration, and remanded the matter back to the District Court for reconsideration. Accordingly, every claim raised in No. 2:15-cv-256 is still pending before this Court.

         2. Case No. 2:16-cv-661

         After filing the instant Section 2241 Petition on June 7, 2016, but prior to resolution of his first Section 2254 petition in No. 2:15-cv-256, Petitioner filed a second Section 2254 petition in this Court on November 17, 2016 in No. 2:16-cv-661. Therein, Petitioner raised the following grounds for federal habeas relief: (I) The Dinwiddie Circuit Court was without jurisdiction to supersede the commitment order of W&JCC Circuit Court; (II) Petitioner's commitment to VDOC violated the Double Jeopardy Clause; (III) The criminal commitment order was ultra vires; (IV) Petitioner's right to notice of the charge against was violated; (V) Petitioner has been falsely imprisoned; (VI, VIII & XIII) Petitioner's due process rights have been violated by his confinement in a penal institution; (VII) Petitioner has been subjected to cruel and unusual punishment; (IX) Petitioner's placement within VDOC violates the Americans with Disabilities Act; (X) Petitioner's placement with VDOC violates equal protection; (XI) Petitioner is actually innocent; (XII) Petitioner's 2000 guilty pleas were invalid and violated due process and his challenge is not procedurally barred because he is actual innocent of the charges; (XIV) Petitioner's sentence and confinement violate his right to a speedy trial; (XV) Petitioner's attorney at the probation revocation hearing was ineffective because: (a) She had a conflict of interest; (b) She did not prepare a defense; (c) She did not argue or present a case that Petitioner was incompetent; (d) She did properly present Petitioner's appeal; (XVI) The Dinwiddie Circuit Court violated Petitioner's due process rights by refusing to hear his pro se motions; (XVII) A decision favorable to the Petitioner would be good public policy. Farabee v. Clarke, No. 2:16-cv-661, ECF No. 1.

         D. Original Report and Recommendation (ECF No. 42)

         In the original Report and Recommendation (ECF No. 42), dated July 28, 2017, the undersigned recommended that both the Petition and the Amended/Supplemental Petition be denied as moot. See ECF No. 42 ("A habeas case under § 2241 can be rendered moot if the petitioner received the relief sought in the petition.") (citing Hood v. Johns, 432 F. App'x. 180 (4th Cir. 2011); Reyes v. United States Immigration & Naturalization Serv., 141 F. App'x. 96 (4th Cir. 2005); Ampadu v. Crawford, No. 2:16-cv-612, 2017 WL 772917 (E.D. Va. Jan. 27, 2017); Rivas v. Wilson, No. 3;I4CV7I9, 2015 WL 9438027 (E.D. Va. Nov. 18, 2015)). These recommendations were based upon the undersigned's mistaken belief that the relief requested by Petitioner in both the Petition and the Amended/Supplemental Petition, namely, to be transferred back to the custody of the Commissioner of VDBHDS, was satisfied by Petitioner's return to Marion. ECF No. 42 at 4. This oversight was brought to the Court's attention by virtue of the various Objections to the Report and Recommendation filed by Petitioner. See e.g., ECF No. 48 (Objection to Report and Recommendation); ECF No. 49 (Supplemental Objection to Report and Recommendation); ECF No. 50 (Memorandum in Support of ECF No. 48 and 49); ECF No. 52 (Second Supplemental Opposition to Report and Recommendation).[3]

         In ruling on Petitioner's various Objections and Supplemental Objections to the Original Report and Recommendation, the District Court stated "the Marion Correctional Treatment Center is a Virginia Department of Corrections facility and the relief Petitioner seeks is placement in the custody of the Department of Behavioral Health and Developmental Services ('DBHDS') and/or at a DBHDS facility. . . . The Court finds it necessary for Respondent to file a response to the Objections raised in ECF Nos. 48/50 and 49." ECF No. 54 at 1-2 (citing ECF No. 48 at 4). The matter was re-referred to the undersigned for the generation of an Amended Report and Recommendation. The Court also ordered the Respondents to file a response addressing the issues raised by Petitioner's Objections.

         On November 27, 2017, the Respondents filed a Response to the Objections as directed by the November 9, 2017 District Court Order, as well as four exhibits in support thereof. ECF No. 57, attachs. l-4.[4] Therein, the Respondents concede that Petitioner's Objections correctly state that the Petition and Amended/Supplemental Petition do not seek transfer back to Marion, because Marion is a VDOC facility, but rather a transfer from a VDOC facility to a VDBHDS facility. ECF No. 57 at 1, ¶¶ 1-2. The Respondents explain that Petitioner was sent to Marion because it is an accredited behavioral health facility used by VDOC to treat inmates with acute mental illness, but Petitioner was transferred out of Marion and back to the VDOC institution from where he came, Red Onion State Prison ("ROSP") when his mental illness was no longer acute. ECF No. 57 at 1, ¶ 2. Notwithstanding these clarifications, the Respondents maintain the position they took in their Motion to Dismiss, namely, that the Petition and the Amended Petition should be dismissed for four reasons. First, although the Petition is made pursuant to Section 2241, the Petition and Amended Petition is second and successive, and Petitioner has not received permission from the Fourth Circuit to file a successive Petition. ECF No. 57 at 2-4, ¶¶ 3-6. Second, according to the Respondents, all of Petitioner's claims have been defaulted. ECF No. 57 at 4-6, ¶¶ 7-12. Third, in Williams v. Commonwealth, 294 Va. 25 (2017), the Virginia Supreme Court reaffirmed that "a civil commitment does not preclude the criminal punishment of a person who commits a new offense in a mental health facility." ECF No. 57 at 6-8, ¶ 12. Finally, Petitioner is provided with psychiatric care at ROSP; however, Petitioner refuses to cooperate with mental health providers. For example, Petitioner is prescribed anti-psychotic medication, but he refuses to take it. ECF No. 57 at 8, ¶ 13 (citing ECF No. 57, attach. 2 at 1-2, ¶ 5). Additionally, any restrictions complained of by Petitioner in his Petitions or various Motions are necessitated by the fact that Petitioner continues to be a danger to himself and others. ECF No. 57 at 8, ¶ 13 (citing ECF No. 57, attach. 2 at 1-2, ¶ 5; ECF No. 49, attach. 1 at 1).

         Petitioner filed several Memoranda in Opposition to the Respondents' November 27, 2017 Response. See ECF No. 62 (Reply to ECF No. 57); ECF No. 63 (Memorandum in Opposition); ECF No. 64 (Supplemental Memorandum in Opposition). The matter is once again ripe and ready for the undersigned's recommended disposition.

         In the absence of grounds warranting blanket dismissal of Petitioner's cause of action based on mootness, the undersigned RECOMMENDS that the Original Report and Recommendation be SUPERSEDED AND REPLACED in its entirety, and submits the instant Amended Report and Recommendation for findings of fact and recommended disposition of the Respondents' Motion to Dismiss. By virtue of the Report and Recommendation needing to be amended, all of the other Motions disposed of therein remain ripe and ready for disposition, as discussed in greater detail in the preceding section, Part I.E, infra.

         E. Outstanding Motions

         1. Petitioner's Motion for Preliminary Injunction (ECF No. 14)

         On December 2, 2016, Petitioner filed a Motion for Preliminary Injunction wherein he complained that Marion continually kept him in isolation and or in segregation unit, and requested that the Court provide injunctive relief to prevent Petitioner's further subjection to such conditions. ECF No. 14.

         2. Petitioner's Motion for Injunctive Relief by Declaratory Judgment (ECF No. 15)

         On December 2, 2016, Petitioner filed a Motion for Injunctive Relief by Declaratory Judgment. ECF No. 14. Therein, Petitioner requests that the Court declare that Petitioner has a right to be treated at VDBHDS and order that Petitioner be transferred to a facility within the custody of the Commissioner of VDBHDS. Additionally Petitioner requests that the Court declare that if Petitioner's entitlement to the specific treatment and terms he seeks are unfulfilled, order the offending parties to pay damages to Petitioner.

         3. Petitioner's Motion ...


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