Unpublished Disposition, 921 F.2d 282 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1987)

Gary Ronald WARREN, Petitioner-Appellant,v.Richard H. RISON, Warden, et al., Respondents-Appellees.

No. 90-55110.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 18, 1990.* Decided Dec. 21, 1990.

Before GOODWIN, Chief Judge, and SCHROEDER and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Gary Ronald Warren, a federal prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2241 habeas petition. Warren alleges that federal prison officials violated his due process rights when they refused to transfer him to a state prison. We construe Warren's petition as an action brought under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), and we affirm.1 

While Warren was serving his sentence at the United States Penitentiary in Marion, Illinois, members of various gangs apparently labelled him an informant. After federal officials determined that he required protective custody, he was transferred to the federal penitentiary in Lompoc, California, where he was placed in segregation for his safety. After he requested a transfer to a state facility for his personal safety, prison officials arranged his transfer to the Washington State Prison in Walla Walla, where he again was identified as an informant. Warren was then placed in protective segregation until prison officials arranged for his transfer to Monroe Reformatory in Monroe, Washington, where he remained in the general population until he escaped on August 31, 1987. After he was recaptured and while he was awaiting sentencing on the escape charges, he escaped again from Snohomish County Jail. Upon his return to Lompoc, he again was housed in protective segregation.

Thereafter, Warren filed a request with the Bureau of Prisons for a transfer to another, safer facility. The Bureau of Prisons determined that Warren was a verified protection case and determined that he would be transferred to a different federal facility for his protection. Warren then filed this action, asserting that he should be transferred to a state facility rather than to another federal facility.

A prisoner has no due process right to be housed in the institution of his choice unless federal regulations impose substantive limitations on the exercise of official discretion such that "particularized standards or criteria" limit the discretion of prison officials in making transfers. See Olim v. Wakinekona, 461 U.S. 238, 245-49 (1983); Meachum v. Fano, 427 U.S. 215, 225 (1983). Although 18 U.S.C. §§ 4042(b)-(c) require the Attorney General to "provide for the safekeeping" and "protection" of federal prisoners, Warren seeks transfer to a state facility so that he can be placed in the general population rather than being placed in protective segregation in a federal facility.2  Because Warren has no protected interest in being housed in any particular institution and only must be housed safely, the district court properly dismissed his action.3 

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Warren's motion for oral argument is denied

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3

 1

The writ of habeas corpus is available to federal prisoners who challenge the fact or duration of their physical confinement. Preiser v. Rodriguez, 411 U.S. 475, 484-86 (1973). Habeas corpus relief is not available to prisoners, such as Warren, who attack the terms and conditions of their confinement. Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979). Nevertheless, construing Warren's pro se pleadings liberally, his action was properly brought under Bivens. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (per curiam) (a habeas corpus petition that presents claims cognizable under section 1983 should be construed to that extent as a section 1983 complaint); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)

The government asserts that Warren's appeal is not timely because his notice of appeal was filed 24 days after the district court entered its judgment rather than within the 10 days required by Fed. R. App. P. 4(b) for appeals in criminal cases. Nevertheless, because Warren's action, whether construed as a habeas petition or a Bivens action, is a civil action brought against "the United States or an officer or agency thereof," the time for appeal is 60 days, and Warren's notice of appeal is timely. See Fed. R. App. P. 4(a).

 2

Warren apparently asserts that he cannot be protected while in the general population in a federal facility and that transfer to a state facility is the only way he can be placed safely into the general population

 3

On appeal, Warren for the first time challenges various conditions of his custody at the federal penitentiary in Marion, Illinois, including (1) the Board of Prison's alleged failure to comply with the Code of Federal Regulations' due process requirements and its policy statements when placing him in administrative segregation and (2) the failure of prison officials to place him in protective custody. Because Warren did not raise these issues in the district court, we decline to consider them, although he is not precluded from raising them in a subsequent action. Willard v. California, 812 F.2d 461, 465 (9th Cir. 1987)

Warren's motions to compel discovery are denied.