Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1989)

MEMORANDUM^* 

John Doe, a protectee of the Federal Witness Protection Program, appeals the district court's summary judgment dismissing his petition for a writ of habeas corpus or mandamus. We affirm.

We review de novo the district court's summary dismissal of Doe's complaint. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). The district court properly dismissed Doe's action. Neither habeas corpus nor mandamus relief is available in this situation. Although Doe's action could have been construed as a civil rights action for injunctive relief, Doe did not allege facts sufficient to state a claim for such relief.

The writ of habeas corpus is available to federal prisoners who seek to challenge the fact or duration of physical confinement. See Preiser v. Rodriguez, 411 U.S. 475, 484-86 (1973). Habeas corpus relief is not available, however, to a prisoner such as Doe who claims that the terms and conditions of his imprisonment violate his constitutional rights. Crawford v. Bell, 599 F.2d 890, 891-2 (9th Cir. 1979).

Mandamus relief is available "only if (1) the individual's claim is clear and certain; (2) the official's duty is 'ministerial and so plainly prescribed as to be free from doubt'; and (3) no other adequate remedy is available." Azurin v. Von Raab, 803 F.2d 993, 995 (9th Cir. 1986), cert. denied, 107 S. Ct. 3264 (1987) (quoting Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986)). While the Bureau of Prisons has general duties of protection and safekeeping of prisoners, see 18 U.S.C. § 4042, how these duties are to be executed is not specifically prescribed. Decisions about who may enter WITSEC and whether to issue separation orders are discretionary rather than ministerial. The district court properly denied mandamus relief.

For the first time on appeal, Doe urges that we may construe his action as one for injunctive relief from violation of his constitutional rights to due process. Even were we to construe Doe's action as a claim under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), Doe has not demonstrated a right to relief. He has failed to demonstrate that he has been deprived of an interest protected by the due process clause. Once a prisoner has been constitutionally deprived of his liberty, transfer from one institution to another less favorable institution does not implicate any liberty interests. See Meachum v. Fano, 427 U.S. 215, 224 (1976).

The particular facts of this matter suggest a ready solution to the problem before us. The question of Doe's safety has been brought forcefully to the attention of prison administrators. They would not knowingly do an act that will result in loss of Doe's life. The government's lawyer agrees that there is a serious risk of harm if Doe is returned to the general population. Doe's discharge date is scheduled for late June 1989. His attorney indicated at oral argument that he would prefer remaining in solitary confinement to discharge into the general prison population. It therefore appears to the court that the wisest move, in the interest of avoiding further litigation, is to grant Doe's request to complete the final few weeks of his term in solitary confinement. We suggest but do not direct that the prison administration consider this option.

AFFIRMED.

NELSON, dissenting.

I dissent because the petitioner's appeal from the district court's denial of a writ of habeas corpus and/or mandamus is moot. Petitioner claimed a constitutional right to be protected from the general prison population by separation orders or by placement in a special housing unit. The claim is moot because the petitioner was released on parole on June 19, 1989, precluding this court from granting petitioner effective relief. Reimers v. State of Oregon, 863 F.2d 630, 632 (9th Cir. 1989).

If the claim were not moot, I would dissent on the grounds that we have habeas jurisdiction and that placement of petitioner in the general prison population without separation orders would have violated the petitioner's constitutional right to substantive due process.