(HC) Marx v. Federal Bureau of Prisons et al, No. 1:2009cv00079 - Document 17 (E.D. Cal. 2010)

Court Description: ORDER GRANTING 13 Respondent's Motion to Dismiss and Dismissing the Action with Prejudice; ORDER Directing the Clerk to enter Judgment and Close the Case, signed by Magistrate Judge Sheila K. Oberto on 05/11/2010. CASE CLOSED (Martin, S)

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(HC) Marx v. Federal Bureau of Prisons et al Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JASON ALLEN MARX, 10 Petitioner, 11 12 v. 13 FEDERAL BUREAU OF PRISONS, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-00079-SKO-HC ORDER GRANTING RESPONDENT’S MOTION TO DISMISS (DOC. 13) AND DISMISSING THE ACTION WITH PREJUDICE ORDER DIRECTING THE CLERK TO ENTER JUDGMENT AND CLOSE THE CASE 16 Petitioner is a federal prisoner proceeding pro se with a 17 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 18 Pursuant to the parties’ consent,1 the matter has been referred 19 to the Magistrate Judge for all proceedings, including the entry 20 of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. 21 P. 73(b), and Local Rule 73-301. Pending before the Court is 22 Respondent’s motion to dismiss the action. 23 I. Procedural Summary 24 On January 14, 2009, Petitioner filed a petition for writ of 25 26 27 28 1 Petitioner filed a signed, written consent form on January 23, 2009; Respondents Federal Bureau of Prisons, Federal Prison Camp at Atwater, Hector Rios, Jesse Gonzalez, and Unit-Team, FPC filed a written consent form signed by their authorized representative on February 17, 2009. 1 Dockets.Justia.com 1 habeas corpus in which he challenged the execution of his 2 sentence pursuant to 28 U.S.C. § 2241. 3 alleged that the Bureau of Prisons (BOP) arbitrarily and 4 capriciously denied him individualized consideration for 5 placement at a residential reentry center (RRC) for twelve (12) 6 months, pursuant to the Second Chance Act (SCA) of 2007; violated 7 the Administrative Procedures Act (APA) by improper publication 8 of, or failure to publish, a substantive rule and by failing to 9 publish, post, and make available to the inmate population all 10 changes in the law under the SCA; and failed to invoke the so- 11 called good cause exception pursuant to 5 U.S.C. §§ 706, 533(d). 12 (Pet. pp. 1, 8-9.) 13 institution of confinement limited all RRC placement to no more 14 than six (6) months of an inmate’s total sentence. 15 that this was contrary to the SCA’s provision for twelve (12) 16 months, and in violation of 18 U.S.C. §§ 3621(b) and 3624(c) and 17 28 C.F.R. §§ 570.20, 570.21. 18 (Pet. p. 1.)2 Petitioner Petitioner alleged that the unit team at his He argues (Id. p. 9, 11-12.) Petitioner relies on the decision in Rodriguez v. Smith, 541 19 F.3d 1180 (9th Cir. 2008), in which the court determined that 20 regulations of the BOP (28 C.F.R. §§ 570.20 and 570.21) that 21 purported categorically to exclude consideration of prisoners for 22 placement in RRC’s for more than the last six (6) months of their 23 sentences were contrary to the Congressional intent clearly 24 expressed in 18 U.S.C. § 3621(b), which provided for 25 individualized consideration and exercise of administrative 26 27 2 28 References to pages of filed documents are to the page numbers that are automatically assigned by the Court’s electronic filing system and appear in the upper right-hand corner of the pages of filed documents. 2 1 discretion based on specified factors. 2 very same relief as that affirmed by the court in Rodriguez, 3 namely, a writ of habeas corpus ordering the BOP promptly to 4 consider the prisoner for transfer to an RRC pursuant to the 5 criteria set forth in 18 U.S.C. § 3621 and without reference to 6 invalid regulations. Petitioner here seeks the 541 F.3d at 1189. 7 In response to the petition, Respondent served by mail on 8 Petitioner and filed on December 8, 2009, a motion to dismiss. 9 Petitioner did not file an opposition to the motion. Respondent 10 seeks dismissal of the petition for lack of subject matter 11 jurisdiction, mootness, failure to exhaust administrative 12 remedies, and lack of standing. 13 II. Factual Background 14 Petitioner is housed at the federal prison camp located in 15 Atwater, California and is serving a sentence of ninety-six (96) 16 months to be followed by period of five (5) years of supervised 17 release pursuant to his conviction after a guilty plea of 18 violating 21 U.S.C. §§ 846 and 841 (conspiracy to possess 19 methamphetamine with intent to distribute). 20 Decl. Leticia Ortiz ¶ 2.) He was sentenced in August 2008 and is 21 scheduled to be released on August 7, 2015. 22 Ortiz ¶ 2.) (Pet. pp. 3, 7; (Pet p. 3; Decl. 23 III. Motion to Dismiss 24 Title 28 U.S.C. § 2241 provides that writs of habeas corpus 25 may be granted by a district court within its jurisdiction only 26 to a prisoner whose custody is within enumerated categories, 27 including but not limited to custody under the authority of the 28 United States and custody in violation of the Constitution, laws, 3 1 or treaties of the United States. 28 U.S.C. § 2241(a),(c)(1),(3). 2 A district court must award a writ of habeas corpus or issue 3 an order to show cause why it should not be granted unless it 4 appears from the application that the applicant is not entitled 5 thereto. 28 U.S.C. § 2243. 6 2254 Cases (Rule 4) is applicable to proceedings brought pursuant 7 to § 2241. 8 Rule 4 permits the filing of “an answer, motion, or other 9 response” and thus authorizes the filing of a motion in lieu of Rule 4 of the Rules Governing Section Rule 1(b) of the Rules Governing Section 2254 Cases. 10 an answer in response to a petition. 11 1976 Adoption and 2004 Amendments. 12 flexibility and discretion initially to forego an answer in the 13 interest of screening out frivolous applications and eliminating 14 the burden that would be placed on a respondent by ordering an 15 unnecessary answer. 16 Rule 4 confers upon the Court broad discretion to take “other 17 action the judge may order,” including authorizing a respondent 18 to make a motion to dismiss based upon information furnished by 19 respondent, which may show that a petitioner’s claims suffer a 20 procedural or jurisdictional infirmity, such as res judicata, 21 failure to exhaust state remedies, or absence of custody. 22 4, Advisory Committee Notes, 1976 Adoption. 23 Advisory Committee Notes, This gives the Court the Advisory Committee Notes, 1976 Adoption. Rule The Supreme Court has characterized as erroneous the view 24 that a Rule 12(b)(6) motion is appropriate in a habeas corpus 25 proceeding. 26 434 U.S. 257, 269 n. 14 (1978). 27 language of Rule 4, it has been held in this circuit that motions 28 to dismiss are appropriate in cases that proceed pursuant to 28 See, Browder v. Director, Ill. Dept. of Corrections, However, in light of the broad 4 1 U.S.C. § 2254 and present various procedural issues. 2 v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (a motion to dismiss 3 for failure to raise any issue of federal law, which was based on 4 the insufficiency of the facts as alleged in the petition to 5 justify relief as a matter of law, was evaluated under Rule 4); 6 White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (procedural 7 default in state court was appropriately the subject of a 8 motion); Hillery v. Pulley, 533 F.Supp. 1189, 1194 n. 12 9 (E.D.Cal. 1982) (after the trial court had determined that 10 summary dismissal was unwarranted, a motion to dismiss for 11 failure to exhaust state remedies was appropriately considered 12 after receipt of evidence pursuant to Rule 7(a) to clarify 13 whether or not the possible defect, not apparent on the face of 14 the petition, might preclude a hearing on the merits). 15 O’Bremski Here, the Respondent’s filing of the motion to dismiss, and 16 the Court’s consideration thereof, are appropriate. 17 motion to dismiss is based on lack of subject matter 18 jurisdiction, mootness, failure to exhaust administrative 19 remedies, and lack of standing. 20 limited jurisdiction with a continuing duty to determine its own 21 subject matter jurisdiction and to dismiss an action where it 22 appears that the Court lacks jurisdiction. 23 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n. 3 (9th Cir. 1982) 24 (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); 25 Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). 26 Although Petitioner proceeds pursuant to § 2241, Respondent’s 27 motion is similar in procedural posture to a motion to dismiss 28 for failure to exhaust state court remedies or for state Respondent’s A federal court is a court of 5 Fed. R. Civ. P. 1 procedural default in a proceeding undertaken pursuant to § 2254. 2 Further, the motion before the Court is unopposed, and the facts 3 alleged in the petition and the evidentiary papers supporting the 4 motion are not materially disputed. 5 yet filed a formal answer. Finally, Respondent has not 6 The Court therefore exercises its discretion to review 7 Respondent’s motion pursuant to its authority under Rule 4. 8 IV. Subject Matter Jurisdiction 9 Respondent argues that this Court is without subject matter 10 jurisdiction over the controversy because Petitioner challenges 11 not the fact or duration of his confinement, but rather the 12 conditions of his confinement, which Respondent contends are 13 outside the scope of habeas corpus relief. 14 Relief by way of a writ of habeas corpus extends to a 15 prisoner in custody under the authority of the United States who 16 shows that the custody violates the Constitution, laws, or 17 treaties of the United States. 18 a federal prisoner who challenges the validity or 19 constitutionality of his conviction must file a petition for writ 20 of habeas corpus pursuant to 28 U.S.C. § 2255, a federal prisoner 21 challenging the manner, location, or conditions of the execution 22 of a sentence must bring a petition for writ of habeas corpus 23 under 28 U.S.C. § 2241. 24 864-65 (9th Cir. 2000). 28 U.S.C. § 2241(c)(3). Although Hernandez v. Campbell, 204 F.3d 861, 25 In arguing that Petitioner is challenging not the fact or 26 duration of his confinement, but rather only the conditions of 27 his confinement, Respondent relies in part on the court’s 28 characterization of a RRC as a place of incarceration in 6 1 Rodriguez v. Smith, 541 F.3d 1180, 1184-1186 (9th Cir. 2008). 2 Because of this, Respondent contends that Petitioner’s request 3 for relief implicates nothing more than a transfer of the place 4 of confinement as distinct from any phenomenon affecting the fact 5 or duration of the confinement. 6 In Rodriguez v. Smith, however, the court affirmed the 7 district court’s grant of the very relief requested here, namely, 8 a writ of habeas corpus directing the BOP to afford the 9 petitioner individualized consideration as provided for by 10 statute. 11 was not expressly raised in Rodriguez, Respondent’s 12 jurisdictional assertion is fundamentally inconsistent with the 13 court’s decision in that case. 14 Although the question of subject matter jurisdiction Respondent’s view of jurisdiction is not required by the 15 wording of the governing statute. 16 provide that the writ of habeas corpus extends to a prisoner who 17 “is in custody under or by color of” the authority of the United 18 states as well as to a prisoner who “is in custody in violation 19 of the Constitution or laws or treaties of the United States.” 20 Unlike § 2255(a), which limits potential applicants to prisoners 21 “claiming the right to be released,” § 2241 does not contain any 22 such exclusions or limitations. Petitioner’s claim in the instant 23 case challenges the manner of execution of Petitioner’s sentence 24 as being in violation of a clear, specific federal statute and 25 thus comes within the express terms of § 2241. 26 Sections 2241(c)(1) and (3) The Court in Preiser v. Rodriguez, 411 U.S. 475 (1973) noted 27 that habeas relief was appropriate for federal prisoners who 28 claimed that a federal judge’s action was contrary to federal 7 1 statute and resulted in unlawful confinement in the wrong 2 institution. 3 involving a federal judge’s sentencing of a federal prisoner to 4 time in a state custodial institution in violation of a federal 5 statute that prohibited a sentence to imprisonment in a state 6 penitentiary unless the term was to exceed a year; and Humphrey 7 v. Cady, 405 U.S. 504 (1972), involving a state prisoner’s 8 challenge, based on unlawful commitment procedures as well as the 9 conditions of his confinement, to his commitment to a sexual 411 U.S. at 475 (citing In re Bonner, 151 U.S. 242, 10 deviate facility for a potentially indefinite period of time). 11 The present case does not involve the functions of the sentencing 12 court, a possibility of immediate release, or any shortening of 13 the duration of confinement; thus it may not lie within the 14 “core” of habeas corpus. 15 Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003). 16 However, the scope of habeas corpus has not been See, Preiser, 411 U.S. at 487-88; 17 definitively limited to only the central core function. 18 Preiser, 411 U.S. at 499 (declining to describe federal habeas 19 corpus categorically as unavailable to challenge conditions of 20 confinement, and citing Johnson v. Avery, 393 U.S. 483 (1969) 21 [habeas corpus available to control prison conditions that 22 restricted access to federal habeas corpus relief]). 23 See, Further, in addition to the obvious example of Rodriguez v. 24 Smith, the Court notes that decisions in other cases in this 25 circuit have extended the reach of § 2241 to matters related to 26 the manner of execution of sentence that were alleged to violate 27 federal statutory or Constitutional provisions but did not 28 involve a direct or immediate effect on the fact or duration of 8 1 confinement. 2 549 (9th Cir. 1998) (permitting a federal prisoner to challenge 3 by way of § 2241 the BOP’s policies concerning collection of 4 court-ordered fines alleged to violate not only federal statutes 5 entrusting supervision of fine collection to the federal courts 6 but also the separation of powers provided for in Article III of 7 the Constitution); United States v. Lemoine, 546 F.3d 1042, 1046 8 (9th Cir. 2008) (entertaining and resolving on a petition 9 pursuant to § 2241 a prisoner’s challenge to the BOP’s See, Montano-Figueroa v. Crabtree, 162 F.3d 548, 10 requirement that a federal prisoner pay restitution at a higher 11 rate than ordered at sentencing pursuant to a federal statute). 12 Respondent relies on cases which have emphasized the 13 appropriateness of considering conditions of confinement in suits 14 brought pursuant to 42 U.S.C. § 1983 (mot. pp. 3-9), and on 15 Ramirez v. Galaza, 334 F.3d 850, 856-59 (9th Cir. 2003), in which 16 it was held that the “favorable termination” rule of Heck v. 17 Humphrey3 applicable to civil rights suits over prison conditions 18 did not apply to a suit alleging a denial of due process in 19 prison disciplinary procedures and administrative appeals thereof 20 where expungement of the disciplinary findings was not likely to 21 have an effect on the overall length of the prisoner’s sentence. 22 In light of the distinct purposes and functions served by §§ 2241 23 and 2254, it is significant that the present suit does not 24 25 26 27 28 3 The reference is to Heck v. Humphrey, 512 U.S. 477 (1994), that held that in order to preserve habeas corpus jurisdiction, a § 1983 claim that would call into question the lawfulness of a plaintiff’s conviction or confinement is not cognizable until and unless the plaintiff can prove that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. 9 1 implicate the concerns attendant upon the efforts reflected in 2 § 1983 to provide a federal remedy for injuries caused by 3 violations of federal law at the hands of persons acting under 4 color of state law. 5 straightforward question concerning the propriety of a federal 6 authority’s action involving the manner of execution of 7 Petitioner’s sentence and that is alleged to be contrary to a 8 specific and clear federal statute. 9 by Petitioner on the merits have been considered and determined Here, the petition presents a Further, the issues asserted 10 by the appellate court of this circuit and have been resolved in 11 Petitioner’s favor in a proceeding brought pursuant to § 2241. 12 In view of the state of the authorities and the uncertainty 13 concerning the scope of the habeas remedy in circumstances such 14 as the present, the Court concludes that Respondent’s contention 15 too narrowly defines the range of cases subject to § 2241 and 16 inflexibly treats two categories of cases, namely, conditions 17 suits and habeas actions concerning the manner of execution of 18 sentence, as necessarily mutually exclusive phenomena. 19 concludes that Petitioner’s action is one to which habeas corpus 20 may extend because it concerns his custody under the authority of 21 the United States and an allegation that his custody is in 22 violation of specific federal statutes governing the execution of 23 his sentence. 24 The Court The Court thus concludes that it has subject matter 25 jurisdiction over the action, and Respondent’s motion to dismiss 26 for lack of subject matter jurisdiction will be denied. 27 V. Personal Jurisdiction 28 Title 28 U.S.C. § 2241(a) provides that writs of habeas 10 1 corpus may be granted by the district courts “within their 2 respective jurisdictions.” 3 upon the prisoner, but upon the prisoner’s custodian. 4 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495 5 (1973). 6 under 28 U.S.C. § 2241 must file the petition in the judicial 7 district of the petitioner's custodian. 8 610 F.2d 672, 677 (9th Cir. 1990). 9 penitentiary where a prisoner is confined constitutes the A writ of habeas corpus operates not Braden v. A petitioner filing a petition for writ of habeas corpus Brown v. United States, The warden of the 10 custodian who must be named in the petition, and the petition 11 must be filed in the district of confinement. 12 Padilla, 542 U.S. 426, 446-47 (2004). 13 custodian is in the territorial jurisdiction of the Court at the 14 time the petition is filed; transfer of the petitioner thereafter 15 does not defeat personal jurisdiction that has once been properly 16 established. 17 overruled on other grounds in Braden v. 30th Judicial Circuit 18 Court of Kentucky, 410 U.S. at 193, citing Ex parte Mitsuye Endo, 19 323 U.S. 283, 305 (1944); Francis v. Rison, 894 F.2d 353, 354 20 (9th Cir. 1990). 21 deprives the Court of personal jurisdiction. 22 349 F.3d 1149, 1153 (9th Cir. 2003). 23 Id.; Rumsfeld v. It is sufficient if the Ahrens v. Clark, 335 U.S. 188, 193 (1948), A failure to name and serve the custodian Johnson v. Reilly, Here, Petitioner was incarcerated within the district at the 24 time the petition was filed. 25 in the motion to dismiss that Petitioner named the Bureau of 26 Prisons as “the” Respondent (mot. p. 2, l. 8), the Court notes 27 that Petitioner also named Warden Rios as a respondent (pet p. 28 1). Further, although Respondent states In the motion to dismiss, Respondent represents that R. A. 11 1 Rios is the warden at the United States Penitentiary, Atwater, 2 California, which includes the Federal Prison Camp, and is the 3 proper respondent in this action. 4 notes that the custodian is within the district. 5 6 (Mot. p. 2.) The Court thus Accordingly, the Court concludes that it has personal jurisdiction over a proper respondent. 7 VI. Mootness 8 Respondent argues that the petition is moot because it is 9 10 11 undisputed that Petitioner has received all the relief he could obtain in this petition. Federal courts lack jurisdiction to decide cases that are 12 moot because the courts’ constitutional authority extends to only 13 actual cases or controversies. 14 Heckler, 464 U.S. 67, 70-71 (1983). 15 or controversy in which a litigant has a personal stake in the 16 outcome of the suit throughout all stages of federal judicial 17 proceedings and has suffered some actual injury that can be 18 redressed by a favorable judicial decision. 19 writ of habeas corpus becomes moot when it no longer presents a 20 case or controversy under Article III, § 2 of the Constitution. 21 Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003). 22 for writ of habeas corpus is moot where a petitioner’s claim for 23 relief cannot be redressed by a favorable decision of the court 24 issuing a writ of habeas corpus. 25 996, 1000-01 (9th Cir. 2005) (quoting Spencer v. Kemna, 523 U.S. 26 1, 7 (1998)). 27 Union High School District, 228 F.3d 1092, 1098-99 (9th Cir. 28 2000). Iron Arrow Honor Society v. Article III requires a case Id. A petition for A petition Burnett v. Lampert, 432 F.3d Mootness is jurisdictional. Cole v. Oroville Thus, a moot petition must be dismissed because nothing 12 1 remains before the Court to be remedied. 2 U.S. 1, 18 (1998). 3 Spencer v. Kemna, 523 Petitioner deposited his petition in the prison mail on 4 January 12, 2009. 5 Petitioner’s case manager at the custodial institution 6 establishes that thereafter Petitioner was afforded a progress 7 review meeting with his unit team on April 14, 2009. 8 meeting, Petitioner was reviewed for RRC placement with reference 9 to the five criteria required by the pertinent statute, 18 U.S.C. (Pet. p. 14.) The uncontested declaration of At the 10 § 3621(b), and in accordance with the Second Chance Act.4 11 Leticia Ortiz ¶ 4, att. 2, pp. 12-21.) 12 was a determination that pursuant to the pertinent criteria, 180 13 days were determined to be sufficient time for the greatest 14 likelihood of Petitioner’s successful reintegration into the 15 community. 16 placement in a RRC. 17 (Id. p. 19.) (Decl. The result of the review Thus, Petitioner was denied immediate The factual allegations in the petition concern earlier 18 actions attributable to the BOP; they do not meet or contradict 19 the factual matter submitted by Respondent in support of the 20 motion to dismiss. 21 consideration sought by Petitioner has been afforded to him in a 22 program review pursuant to the standards established by the 23 pertinent statutes and Rodriguez v. Smith. Respondent’s evidence establishes that the 24 The Court therefore concludes that the petition is moot. 25 The fact that Petitioner was denied a transfer to a RRC 26 27 28 4 Title 18 U.S.C. § 3261(b) sets forth five (5) factors: the resources of the facility contemplated, the nature and circumstances of the offense, the history and characteristics of the prisoner, any statement by the court that imposed the sentence, and any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2). 13 1 because of the BOP’s findings after the required review does not 2 state a claim for habeas corpus relief. 3 v. Smith was that the BOP was required to afford Petitioner 4 individualized consideration in accordance with the statutes and 5 policies; it did not mandate placement in a RRC. 6 of the uncontested evidence supporting its determination, the BOP 7 was not required to exercise its discretion in favor of 8 Petitioner. 9 March 16, 2010); cf. Superintendent v. Hill, 472 U.S. 445, 447 The holding of Rodriguez Here, in light See, Thomas v. Adler, 2010 WL 962176 *2 (E.D.Cal. 10 (1985) (upholding a determination of a prison disciplinary board 11 that was not arbitrary or lacking in evidentiary support). 12 13 In summary, the Court concludes that the petition is moot. Respondent’s motion to dismiss will be granted.5 14 VII. Disposition 15 Accordingly, it is ORDERED that: 16 1) Respondent’s motion to dismiss the petition is GRANTED; 17 2) The petition for writ of habeas corpus is DISMISSED WITH 18 PREJUDICE; and 19 20 3) The Clerk is DIRECTED to enter judgment and close the case. 21 22 IT IS SO ORDERED. 23 Dated: ie14hj May 11, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 5 In view of the disposition of the motion, the Court will not reach Respondent’s additional arguments concerning failure to exhaust administrative remedies, the applicability of the Prison Litigation Reform Act, or standing. 14

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