Leno Edward Perea v. Richard B Ives et al

Filing 5


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 LENO EDWARD PEREA, ) ) Petitioner, ) ) v. ) ) RICHARD B. IVES, WARDEN, ) ) Respondent. ) ___________________________________) NO. CV 12-10960-MMM (MAN) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE 16 17 18 On December 26, 2012, Petitioner, a federal prisoner proceeding pro 19 se, filed a habeas petition, purportedly pursuant to 28 U.S.C. § 2241, 20 accompanied by a supporting memorandum (respectively, “Petition” and 21 “Pet. Mem.”). 22 the federal correctional institution at which he is incarcerated. Petitioner names as Respondent the Warden of USP-Lompoc, 23 24 Petitioner is not challenging his federal conviction or sentence, 25 the execution of his sentence, or the fact of his custody or 26 incarceration. 27 Eighth Amendment, he has not been receiving “proper mental health 28 treatment.” (Petition at 3.) He alleges that he has not been receiving Rather, Petitioner complains that, in violation of the 1 treatment prescribed by a former physician and has been taken off 2 necessary mental health medication. 3 that: 4 three years; USP-Lompoc lacks an adequate number of trained mental 5 health professionals; and although he has repeatedly requested transfer 6 to another federal facility with adequate mental health professional 7 staffing, he has not been transferred. (Id.) Petitioner further alleges he has been denied access to mental health care for the past (Pet. Mem. at 4-5.) 8 9 A habeas corpus petition under 28 U.S.C. § 2241 is the proper 10 vehicle for a federal prisoner’s challenge to the manner, location, or 11 conditions of a sentence’s execution. 12 F.3d 861, 864 (9th Cir. 2000). 13 conditions of confinement must be brought through a civil rights action, 14 rather than through a habeas corpus petition. 15 F.2d 573, 574 (9th Cir. 1991); see also Docken v. Chase, 393 F.3d 1024, 16 1026 (9th Cir. 2004)(“Traditionally, challenges to prison conditions 17 have been cognizable only via § 1983, while challenges implicating the 18 fact or duration of confinement must be brought through a habeas 19 petition.”). 20 prisoner “who is making a constitutional challenge to the conditions of 21 his prison life, but not to the fact or length of his custody.” 22 v. 23 “[C]onstitutional claims that merely challenge the conditions of a 24 prisoner’s confinement, whether the inmate seeks monetary or injunctive 25 relief, fall outside of that core [of habeas relief] and may be brought 26 pursuant to § 1983 in the first instance.” 27 637, 643, 124 S. Ct. 2117, 2122 (2004). Rodriguez, See Hernandez v. Campbell, 204 By contrast, challenges to a prisoner’s See Badea v. Cox, 931 A civil rights action is the “proper remedy” for a 411 U.S. 475, 500, 93 28 2 S. Ct. 1827, 1841 Preiser (1973). Nelson v. Campbell, 541 U.S. 1 Notwithstanding Petitioner’s invocation of Section 2241, he seeks 2 to pursue civil rights claims, based on an asserted violation of the 3 Eighth Amendment, related to his conditions of confinement, i.e., the 4 alleged failure to provide him with adequate mental health treatment. 5 Petitioner seeks relief that is not available through a habeas action. 6 See Douglas v. Jacquez, 626 F.3d 501, 504 (9th Cir. 2010)(“The power of 7 a federal habeas court ‘lies to enforce the right of personal liberty’ 8 . . . [and as] such, a habeas court ‘has the power to release’ a 9 prisoner, but ‘has no other power.’”)(citations omitted). Petitioner’s 10 claim, therefore, must be raised by way of a civil rights complaint,1 11 rather than through a habeas petition brought under Section 2241. 12 13 While the Court may construe a flawed habeas petition as a civil 14 rights action, see Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 15 407, 409 (1971), converting the Petition to a Bivens complaint would be 16 improper, given that: 17 Rule 11(a) of the Federal Rules of Civil Procedure; (2) the Petition was 18 not accompanied by the $350 filing fee; (3) the Petition was not 19 accompanied by an affidavit regarding Petitioner’s financial status and 20 a certified trust account statement covering the past six months as 21 required by 28 U.S.C. § 1915(a); (4) the Petition was not accompanied by 22 an authorization by Petitioner to have the $350 filing fee deducted from 23 his trust account pursuant to 28 U.S.C. § 1915(b); (5) based on the 24 exhibits 25 exhausted his administrative remedies with respect to the entirety of to the (1) the Petition is unsigned, in violation of Memorandum, it is not clear that Petitioner has 26 1 27 28 Because Petitioner challenges the actions of a federal employee, his civil rights claim must be raised under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999 (1971), rather than 42 U.S.C. § 1983, which applies only to state action. 3 1 his Eighth Amendment claims, a prerequisite to filing a civil rights 2 action;2 (6) no viable Bivens claim has been stated against the sole 3 named Respondent;3 and (7) Petitioner has not identified the capacity in 4 which Respondent would be sued for purposes of a civil rights claim, a 5 critical issue for sovereign immunity purposes.4 6 7 In addition, if the Petition were converted to a Bivens complaint, 8 Petitioner would be obligated to pay the $350 filing fee for such a 9 civil action, either in full or through withdrawals from his prison 10 trust account in accordance with the availability of funds. See 28 11 U.S.C. § 1915(b). 12 would not end Petitioner’s obligation to pay that $350 filing fee. 13 Further, the Court would be obligated to screen the converted Petition 14 pursuant to the screening provisions of the Prisoner Litigation Reform 15 Act of 1995. The dismissal of this action at the pleading stage See 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). The 16 17 2 18 19 20 21 22 23 24 25 26 42 U.S.C. § 1997e(a) provides that: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Section 1997e(a) requires exhaustion “irrespective of the forms of relief sought and offered through administrative avenues.” Booth v. Churner, 531 U.S. 731, 741 n.6, 121 S. Ct. 1819, 1825 n.6 (2001). 3 The Warden of USP-Lompoc is the only named Respondent. The Petition and related Memorandum, however, do not contain any allegations with respect to Respondent, such as what he did or did not do, much less identify what conduct by him violated the Eighth Amendment. Rather, the Petition appears to constitute an improper attempt to hold Respondent vicariously liable premised on the doctrine of respondeat superior, which is inapplicable to Bivens claims. See Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 1948 (2009). 4 27 28 See, e.g., Mayben v. Barnes, 290 F. Supp. 2d 1169, 1173 (E.D. Cal. 2003)(“a Bivens action cannot be brought against a federal employee in his or her official capacity because this would be deemed an action against the United States”). 4 1 allegations of the Petition do not state a cognizable Bivens claim 2 against Respondent. If the converted Petition ultimately were dismissed 3 for failure to state a claim upon which relief may be granted, that 4 dismissal could count as a “strike” against Petitioner for purposes of 5 28 U.S.C. § 1915(g), which provides that a prisoner who has three 6 “strikes” -- i.e., prior actions dismissed on the grounds that they are 7 frivolous, malicious, or fail to state a claim upon which relief may be 8 granted -- may not bring an action or appeal without prepayment of the 9 full filing fee unless “the prisoner is under imminent danger of serous 10 physical injury.” Thus, the Court believes it is appropriate to dismiss 11 the Petition, without prejudice, so that Petitioner may determine 12 whether or not he wishes to raise his present Eighth Amendment Bivens 13 claims through a properly-submitted civil complaint.5 14 15 16 Accordingly, based upon the foregoing, IT IS ORDERED that Judgment shall be entered dismissing the instant Petition without prejudice. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 DATED: January 22, 2013 21 MARGARET M. MORROW UNITED STATES DISTRICT JUDGE 22 23 PRESENTED BY: 24 25 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 26 27 28 5 Petitioner also then may determine if he is willing to incur the $350 filing fee obligation, as well as the possibility of incurring another “strike.” 5

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