(HC) Lugo v. Gill, No. 1:2012cv01773 - Document 6 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition without Prejudice and to Direct the Clerk to Close the Action, signed by Magistrate Judge Sheila K. Oberto on 11/13/12. Referred to Judge O'Neill; Objections Deadline: 30-Days. (Verduzco, M)
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(HC) Lugo v. Gill Doc. 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOAQUIN LUGO, 11 Petitioner, 12 v. 13 A. GILL, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) 1:12-cv—01773-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT PREJUDICE (DOC. 1) AND TO DIRECT THE CLERK TO CLOSE THE ACTION OBJECTIONS DEADLINE: THIRTY (30) DAYS 16 17 Petitioner is a federal prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2241. 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. 22 which was filed on October 30, 2012. The matter has been referred to the Pending before the Court is the petition, 23 I. 24 The Rules Governing Section 2254 Cases in the United States Screening the Petition 25 District Courts (Habeas Rules) are appropriately applied to 26 proceedings undertaken pursuant to 28 U.S.C. § 2241. 27 1(b). 28 review of each petition for writ of habeas corpus. Habeas Rule Habeas Rule 4 requires the Court to make a preliminary The Court 1 Dockets.Justia.com 1 must summarily dismiss a petition "[i]f it plainly appears from 2 the petition and any attached exhibits that the petitioner is not 3 entitled to relief in the district court....” 4 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 5 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). 6 2(c) requires that a petition 1) specify all grounds of relief 7 available to the Petitioner; 2) state the facts supporting each 8 ground; and 3) state the relief requested. 9 not sufficient; the petition must state facts that point to a Habeas Rule 4; Habeas Rule Notice pleading is 10 real possibility of constitutional error. 11 Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 12 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). 13 Allegations in a petition that are vague, conclusory, or palpably 14 incredible are subject to summary dismissal. 15 Vasquez, 908 F.2d at 491. 16 Rule 4, Advisory Hendricks v. The Court may dismiss a petition for writ of habeas corpus 17 either on its own motion under Habeas Rule 4, pursuant to the 18 respondent's motion to dismiss, or after an answer to the 19 petition has been filed. 20 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 21 (9th Cir. 2001). 22 dismissed without leave to amend unless it appears that no 23 tenable claim for relief can be pleaded were such leave granted. 24 Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 25 Advisory Committee Notes to Habeas Rule A petition for habeas corpus should not be Here, Petitioner alleges that he is an inmate of the Federal 26 Correctional Institution at Mendota, California (FCIM), serving 27 an unspecified federal sentence. 28 he was assaulted by a fellow inmate in May 2012 at the Federal Petitioner alleges that after 2 1 Correctional Institution at Atwater, California, he attempted to 2 file an informal resolution concerning the incident and to obtain 3 all institutional and medical reports concerning the incident. 4 Petitioner alleges that he has not received the reports, and that 5 prison staff have not returned the paper that Petitioner filed – 6 which is necessary for Petitioner to proceed to grieve the 7 incident. 8 II. 9 (Pet., doc. 1, 2-3.) Conditions of Confinement A federal court may not entertain an action over which it 10 has no jurisdiction. 11 (9th Cir. 2000). 12 Hernandez v. Campbell, 204 F.3d 861, 865 Relief by way of a writ of habeas corpus extends to a person 13 in custody under the authority of the United States if the 14 petitioner can show that he is “in custody in violation of the 15 Constitution or laws or treaties of the United States.” 16 U.S.C. § 2241(c)(1) & (3). 17 mechanism for a prisoner to challenge the fact or duration of his 18 confinement. 19 Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990) (holding in 20 a Bivens1 action that a claim that time spent serving a state 21 sentence should have been credited against a federal sentence 22 concerned the fact or duration of confinement and thus should 23 have been construed as a petition for writ of habeas corpus 24 pursuant to § 28 U.S.C. § 2241; however, to the extent the 25 complaint sought damages for civil rights violations, it should 26 be construed as a Bivens action); Crawford v. Bell, 599 F.2d 890, 28 A habeas corpus action is the proper Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); 27 28 1 The reference is to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 3 1 891–892 (9th Cir. 1979) (upholding dismissal of a petition 2 challenging conditions of confinement and noting that writ of 3 habeas corpus has traditionally been limited to attacks upon the 4 legality or duration of confinement); see, Greenhill v. Lappin, 5 376 Fed. Appx. 757, 757-58 (9th Cir. 2010) (holding that the 6 appropriate remedy for a federal prisoner's claim that relates to 7 the conditions of his confinement is a civil rights action under 8 Bivens; but see, Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 9 1989) (holding that habeas corpus is available pursuant to § 2241 10 for claims concerning denial of good time credits or subjection 11 to greater restrictions on his liberty, such as disciplinary 12 segregation, without due process of law); Cardenas v. Adler, 2010 13 WL 2180378 (No.1:09-cv-00831-AWI-JLT-HC, May 28, 2010) (holding 14 that petitioner's challenge to constitutionality of sanction of 15 disciplinary segregation and his claim that disciplinary 16 proceedings were the product of retaliation by prison staff were 17 cognizable in a habeas proceeding pursuant to § 2241). 18 Claims concerning various prison conditions that have been 19 brought pursuant to § 2241 have been dismissed in this district 20 for lack of subject matter jurisdiction with indications that an 21 action pursuant to Bivens is appropriate. 22 Rios, 2010 WL 3516358, *3 (No. 1:10-cv-00382-DLB (HC), E.D.Cal. 23 Sept. 2, 2010) (a claim challenging placement in a special 24 management housing unit in connection with a disciplinary 25 violation); Burnette v. Smith, 2009 WL 667199 at *1 (No. 08-2178- 26 DAD-P, E.D.Cal. Mar. 13, 2009) (a petition seeking a transfer and 27 prevention of retaliation by prison staff); Evans v. U.S. 28 Pentitentiary, 2007 WL 4212339 at *1 (No. 1:07-cv-1611-OWW-GSA4 See, e.g., Dyson v. 1 HC, E.D.Cal. Nov. 27, 2007) (claims brought pursuant to 2 § 2241 regarding a transfer and inadequate medical care). 3 Here, Petitioner’s claim or claims concern conditions of 4 confinement that do not bear a relationship to the legality or 5 duration of his confinement. 6 to the conditions of his confinement, it is concluded that the 7 Court lacks habeas corpus jurisdiction over the claims pursuant 8 to § 2241. 9 10 III. Because these claims relate solely Remedy Although the Court lacks habeas corpus jurisdiction over the 11 claims concerning conditions of confinement, the Court could 12 construe Petitioner’s claims as a civil rights complaint brought 13 pursuant to Bivens. 14 251 (1971). 15 See, Wilwording v. Swenson, 404 U.S. 249, However, the Court declines to construe the petition as a 16 civil rights complaint because of various differences in the 17 procedures undertaken in habeas proceedings on the one hand, and 18 civil rights actions on the other. 19 First, if the petition were converted to a civil rights 20 complaint, Petitioner would be obligated to pay the $350 filing 21 fee for a civil action, whether in full or through withdrawals 22 from his prison trust account in accordance with the availability 23 of funds. 24 action at the pleading stage would not terminate Petitioner's 25 duty to pay the $350 filing fee. 26 accompanied by the $350 filing fee or an authorization by 27 Petitioner to have the $350 filing fee deducted from his trust 28 account pursuant to 28 U.S.C. § 1915(b). 28 U.S.C. §§ 1914, 1915(b). The dismissal of this Here, the petition was not 5 1 Further, 42 U.S.C. § 1997e(a) provides, “No action shall be 2 brought with respect to prison conditions under section 1983 of 3 this title, or any other Federal law, by a prisoner confined in 4 any jail, prison, or other correctional facility until such 5 administrative remedies as are available are exhausted.” 6 1997e(a) requires exhaustion “irrespective of the forms of relief 7 sought and offered through administrative avenues.” 8 Churner, 532 U.S. 731, 741 n.6 (2001). 9 administrative remedies are still available to Petitioner. 10 Section Booth v. It is possible that Another omission from the petition that affects the Court’s 11 decision not to consider it as a civil rights complaint is the 12 Petitioner’s failure to identify the capacity in which the named 13 respondent would be sued for purposes of a civil rights claim, 14 which is critical to the issue of sovereign immunity. 15 Additionally, if the petition were converted to a civil rights 16 complaint, the Court would be obligated to screen it pursuant to 17 the screening provisions of the Prisoner Litigation Reform Act of 18 1995. 19 clear that all of Petitioner’s 20 rights claims. 21 failure to state a claim upon which relief may be granted, such a 22 dismissal could count as a “strike” against Petitioner for 23 purposes of 28 U.S.C. § 1915(g) and any future civil rights 24 action he might bring. 25 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). It is not disparate allegations state civil If the pleading ultimately were dismissed for Based on the foregoing analysis, the Court concludes that it 26 is appropriate to dismiss the petition without prejudice so 27 Petitioner himself may determine whether or not he wishes to 28 raise his present claims through a properly submitted civil 6 1 rights complaint.2 2 IV. 3 Accordingly, it is RECOMMENDED that: 4 1) 5 The petition for writ of habeas corpus be DISMISSED without prejudice for lack of subject matter jurisdiction; and 6 7 Recommendations 2) The Clerk be DIRECTED to close the action because the dismissal terminates it in is entirety. 8 These findings and recommendations are submitted to the 9 United States District Court Judge assigned to the case, pursuant 10 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 11 the Local Rules of Practice for the United States District Court, 12 Eastern District of California. 13 being served with a copy, any party may file written objections 14 with the Court and serve a copy on all parties. 15 should be captioned “Objections to Magistrate Judge’s Findings 16 and Recommendations.” 17 and filed within fourteen (14) days (plus three (3) days if 18 served by mail) after service of the objections. 19 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 20 § 636 (b)(1)(C). 21 objections within the specified time may waive the right to 22 appeal the District Court’s order. 23 /// 24 /// Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 25 2 26 27 28 Issuance of a certificate of appealability is not addressed in this order because a certificate of appealability is not required to appeal the denial of a petition under § 2241. Forde v. United States Parole Commission, 114 F.3d 878, 879 (9th Cir. 1997). This is because the plain language of § 2253(c)(1) does not require a certificate with respect to an order that is not a final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. Id. 7 1 1153 (9th Cir. 1991). 2 3 IT IS SO ORDERED. 4 Dated: ie14hj November 13, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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