Eric Donald Grabber v. Jack Fox

Filing 9

ORDER DISMISSING ACTION by Judge Cormac J. Carney. This action is DISMISSED without prejudice. (See Order for further details) Case Terminated. Made JS-6. (vm)

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JS-6

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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ERIC GRABBER,
Petitioner,

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Case No. CV 15-9422 CJC (MRW)
ORDER DISMISSING ACTION

v.
STEVE LANGFORD, Warden,
Defendants.

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The Court grants the government’s unopposed motion to dismiss this federal
habeas action.

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***

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Petitioner is a federal prisoner at FCI Lompoc. He filed a habeas action

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(28 U.S.C. § 2241) challenging his federal Bureau of Prisons (BOP) housing

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designation and assignment. Petitioner requested that the Court order Petitioner to

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be transferred to a specific prison camp, which Petitioner claimed was the

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recommendation of the sentencing judge in his underlying criminal case. (Docket

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# 1.) After screening the petition, the Court (Magistrate Judge Wilner) directed

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Petitioner to submit a supplemental statement explaining the nature of his habeas

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request. (Docket # 3.) In response, Petitioner submitted a brief notice in which he

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asked for “clarification of the Sentencing Court’s intended level of incarceration.”

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(Docket # 4.)

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The government moved to dismiss the action. (Docket # 6.) The

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government argued that this Court does not have jurisdiction to consider a federal

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prisoner’s claim regarding the level of Petitioner’s classification in custody in a

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habeas action.

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The Court directed Petitioner to respond to the government’s motion.

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(Docket # 8.) Judge Wilner specifically informed Petitioner that the Court could

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consider the motion unopposed – and consented to – under the Local Rules unless

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Petitioner filed a response. The Court also advised Petitioner that the action could

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be dismissed under Federal Rule of Civil Procedure 41(b) for failure to prosecute

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the case. (Id. at 2.) However, Petitioner failed to file a timely response.

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1.

Local Rule of Court 7-12 states that, after a party files a motion with

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the Court, the failure to file a required response “may be deemed consent to the

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granting [ ] of the motion.” That rule applies to the present dismissal motion. The

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government plausibly established that Petitioner failed to present a cognizable

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claim for this Court to take up on habeas review (see below). Petitioner’s failure to

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respond to the dismissal motion signifies his consent to the dismissal of the action.

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2.

Dismissal is also proper under Rule 41(b). Rule 41(b) provides that if

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a plaintiff “fails to prosecute or to comply with these rules or a court order, a

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defendant may move to dismiss the action or any claim against it.” Dismissal may

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be ordered by the Court sua sponte. Link v. Wabash R.R., 370 U.S. 626, 629-30

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(1962). Dismissal of a civil action under Rule 41 may be appropriate to advance

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the public’s interest in the expeditious resolution of litigation, the court’s need to

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manage its docket, and to avoid the risk of prejudice to defendants. Omstead v.

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Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); Ferdik v. Bonzelet, 963 F.2d 1258,

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1263 (9th Cir. 1992) (analyzing factors supporting dismissal of Section 1983

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actions).

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Petitioner’s failure to prosecute this action warrants dismissal under

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Rule 41(b). Petitioner failed to respond to the government’s dismissal motion and

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the Court’s order requiring him to do so. (Docket # 6, 8.) The public, the Court,

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and the government have a significant interest in the resolution of this case.

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Petitioner, by contrast, has demonstrated a lack of interest in pursuing the action to

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a decision on the merits. Moreover, given Petitioner’s failure to respond to the

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Court’s order, there are no “less drastic sanctions” available to the Court other than

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a dismissal of the action. Omstead, 594 F.3d at 1084. Rule 41 therefore provides

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an additional basis for dismissing the action.

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3.

Finally, were the Court to reach the merits of the government’s

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dismissal motion, it is apparent that Petitioner is not entitled to relief. The BOP is

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responsible for determining all prisoner housing decisions. Prisoners have “no

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right to be at any particular prison” within the federal system. Grayson v. Rison,

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945 F.2d 1064, 1067 (9th Cir. 1991). The BOP has wide discretion to “manage

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and regulate all federal penal and correctional institutions.” Reeb v. Thomas, 636

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F.3d 1224, 1226 (9th Cir. 2011).

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For that reason, federal courts “lack jurisdiction to review” claims based on

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the BOP’s exercise of that discretion. Id. at 1227 (dismissing federal habeas

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petition asking for petitioner to be reinstated in prison drug treatment program;

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district court had no subject matter jurisdiction). And, although a federal court

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may recommend a specific assignment for a prisoner, a sentencing court “has no

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jurisdiction to select the place where the sentence will be served.” United States v.

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Ceballos, 671 F.3d 852, 855 (9th Cir. 2011) (quotation omitted); Looman v.

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Milusnic, CV 13-6585 MMM (SP), 2014 WL 2206338 at *2 (C.D. Cal.) (same;

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dismissing habeas action challenging housing issue for lack of jurisdiction).

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Petitioner’s habeas action seeks federal court review of his custodial housing

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and classification. Whether he challenges his current housing assignment or the

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BOP’s designation level that led to the assignment, this Court is without

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jurisdiction to review that agency action. Reeb, 636 F.3d at 1227; Ceballos, 671

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F.3d at 855. Petitioner has not stated a legitimate claim that this Court may

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consider on habeas review.

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***

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A dismissal under Rule 41(b) ordinarily “operates as an adjudication on the

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merits” of a claim that leads to a dismissal of the action with prejudice. However,

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when the dismissal is due to a lack of jurisdiction, the dismissal should be without

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prejudice.

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Accordingly, for the above reasons, this action is DISMISSED without
prejudice.
IT IS SO ORDERED.
Dated: April 27, 2016

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___________________________________
HON. CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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Presented by:

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____________________________________
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE

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