(HC) Tarver v. Matevousian, No. 1:2015cv00532 - Document 9 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of the Petition, signed by Magistrate Judge Sandra M. Snyder on 10/14/15. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LAMAR TARVER, 10 11 12 13 CASE NO. 1:15-CV-532-LJO-SMS (HC) Petitioner, v. FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THE PETITION ANDRE MATEVOUSIAN, Respondent. 14 15 Petitioner is a federal prisoner proceeding in pro se and in forma pauperis with a petition 16 for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (“Section 2241”). Petitioner is incarcerated 17 at a United States penitentiary in Atwater, California. However, because Petitioner challenges the 18 conditions of his confinement, and not the fact or duration of his confinement, his petition does 19 not state a cognizable claim for federal habeas relief and should be dismissed without prejudice to 20 filing a civil rights action. 21 COGNIZABILITY 22 The Court is required to screen pleadings filed by prisoners, and to dismiss them to the 23 24 extent they fail to state a claim. 28 U.S.C. § 1915A(a). Under Section 2241, habeas corpus relief is available to a federal prisoner in custody under 25 the authority of the United States if he can show he is “in custody in violation of the Constitution 26 or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(1) & (3). A Section 2241 habeas 27 petition may be filed by a federal prisoner to attack the execution of his sentence. White v. 28 Lambert, 370 F.3d 1002, 1009 (9th Cir. 2004). A civil rights action, commonly called a Bivens 1 action, is the proper mechanism for a prisoner seeking to challenge the conditions of his 2 confinement, not a habeas corpus proceeding. See Bivens v. Six Unknown Named Agents of 3 Federal Bureau of Narcotics, 403 U.S. 388 (1971); and see Love v. Matevousian, 2015 U.S. Dist. 4 LEXIS 109045; 2 (E.D. Cal. Aug. 18, 2015)(Section 2241complaint that prison officials tampered 5 with the petitioner’s mail challenged the conditions of confinement, which is cognizable in a civil 6 rights action rather than a habeas corpus action); Green v. Fox, 2015 U.S. Dist. LEXIS 109131, 7 *12 (C.D. Cal. Aug. 17, 2015)(the portion of a section 2241 petition related to disciplinary 8 findings resulting in loss of privileges constitutes a conditions of confinement claim that must be 9 raised as a Bivens claim, not in a Section 2241 habeas action because this alleged loss does not 10 implicate the length or execution of the petitioner’s sentence); Sanders v. Ponce, 2015 U.S. Dist. 11 LEXIS 109095, *1 (E.D. Cal. Aug. 18, 2015)(petition brought under Section 2241 challenging 12 conditions of confinement act is dismissed and advised to bring Bivens action); Burnette v. Smith, 13 2009 U.S. Dist. LEXIS 20219, *2 (E.D. Cal. Mar. 12, 2009)(a civil rights action, not habeas 14 corpus proceeding under Section 2241, is the proper mechanism for prisoner’s claims regarding 15 transfer to medium-security institution, availability of law library, and prohibiting retaliation by 16 prison officials); and cf. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (state prisoners should 17 challenge conditions of confinement in a civil rights action under 42 U.S.C. § 1983 not in a habeas 18 corpus proceeding). 19 Here, Petitioner alleges that he has been obstructed in his ability to access the Bureau of 20 Prisons administrative remedy process. He alleges that his records maintained in the Bureau of 21 Prisons’ files are inaccurate. Petitioner does not state in this petition what inaccuracy is being 22 maintained. Seeking to address the inaccuracy, Petitioner attempted to file an informal complaint 23 (BP-8 form) to a Counselor Hasset in March 2015. He expected to have a result within 72 hours. 24 After a week, Counselor Hasset informed Petitioner that he had lost his form and asked him to file 25 another, which Petitioner did. Petitioner was informed that his second form was lost. He submitted 26 a third, to which no answer was received. Petitioner attempted to inform the warden and was 27 directed to see the administrative remedy coordinator, who refused to accept his complaint. 28 Petitioner then attempted to have his unit manager intervene, but with no avail. Petitioner requests 2 1 that this court direct the prison staff to process his complaint. 2 Petitioner does not challenge the fact or duration of his confinement; rather, he challenges 3 the conditions of his confinement. Hence, he has not stated a cognizable claim for federal habeas 4 relief. Petitioner is advised that a civil rights action is the proper mechanism under which to bring 5 a challenge to the conditions of confinement. 6 RECOMMENDATION 7 Therefore, it is hereby RECOMMENDED that the petition be DISMISSED without 8 9 prejudice to filing a Bivens civil rights action. These Findings and Recommendations are submitted to the assigned United States District 10 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 11 Rules of Practice for the United States District Court, Eastern District of California. Within thirty 12 (30) days after service of the Findings and Recommendation, Petitioner may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned District Judge 15 will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Petitioner is 16 advised that failure to file objections within the specified time may result in the waiver of rights on 17 appeal. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 20 21 IT IS SO ORDERED. Dated: October 14, 2015 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3

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