Richard Marshall v. Cynthia Entzel

Filing 3

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS by Judge David O. Carter. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RICHARD MARSHALL,
Petitioner,

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Case No. ED CV 17-01200 DOC (AFM)

v.

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CYNTHIA ENTZEL, Warden,

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ORDER SUMMARILY DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS

Respondent.

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Petitioner is a federal inmate incarcerated at the Federal Correctional

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Institution Victorville II in Adelanto, California. On June 16, 2017, he filed a

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Petition for Writ of Habeas Corpus by a Person in Federal Custody (28 U.S.C.

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§ 2241).

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Although petitioner initiated this action through a habeas petition, his claims

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are based on alleged civil rights violations triggered by delayed medical treatment

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for his heart disease. Petitioner specifically alleges that prison officials wrongfully

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closed his delayed-heart-treatment claim at the administrative level by fabricating

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his signature on a “Request for Administrative Remedy Withdrawal.” As a result,

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petitioner cannot exhaust his administrative remedies before pursuing a civil rights

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action in federal court under Bivens v. Six Unknown Named Agents of Federal

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Bureau of Narcotics, 403 U.S. 388 (1971). Petitioner requests that the Court

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restore his administrative remedy process and otherwise order an investigation of

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this “widespread problem.”

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Rule 4 of the Rules Governing Section 2254 Cases in the United States

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District Courts provides in pertinent part: “If it plainly appears from the face of the

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petition and any exhibits annexed to it that the petitioner is not entitled to relief in

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the district court, the judge shall make an order for its summary dismissal and cause

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the petitioner to be notified.” Rule 1(b) provides that the district court may apply

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this rule to “a habeas corpus petition not covered by” 28 U.S.C. § 2254, such as a

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habeas petition covered by 28 U.S.C. § 2241. See Lane v. Feather, 2013 WL

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3280212, at *1 (D. Or. Jun. 27, 2013) (“Pursuant to Rule 1(b) of the Rules

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Governing Section 2254 Cases, this court elects to apply Rule 4 to this 28 U.S.C.

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2241 action.”).

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The Petition is subject to summary dismissal under Rule 4 because

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petitioner’s claims are not based in habeas corpus.

Claims directed to the

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conditions of a petitioner’s confinement may not properly be asserted in a habeas

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petition, or as part of a habeas petition. Rather, such claims must be asserted, if at

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all, in a separate civil rights action. See Preiser v. Rodriguez, 411 U.S. 475, 498-

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500 (1973); see also Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011) (“[W]hen a

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prisoner’s claim would not necessarily spell speedier release, that claim does not lie

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at the core of habeas corpus and may be brought, if at all, under § 1983.”).

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Petitioner’s claims are directed not to the legality or duration of his confinement,

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but only to the conditions of his confinement.

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A federal court has discretion to construe a petitioner’s habeas petition as a

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civil rights complaint. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (per

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curiam), superseded by statute on other grounds as recognized in Woodford v. Ngo,

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548 U.S. 81, 84 (2006); Hansen v. May, 502 F.2d 728, 729-30 (9th Cir. 1974). The

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exercise of such discretion would be inappropriate here for the following reasons.

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First, the Prison Litigation Reform Act of 1995 requires that all prisoners

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who file civil actions in forma pauperis eventually pay the full amount of the filing

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fee. See 28 U.S.C. §§ 1915(b). It is not evident that petitioner would wish to pay

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the full filing fee ($400), as he would eventually be required to do, in order to

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pursue a civil rights action. See Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir.

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2011) (cautioning against converting a habeas petition into a civil rights complaint,

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given that they “differ in a variety of respects — such as the proper defendant,

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filing fees, the means of collecting them, and restrictions on future filings”).

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Second, the named respondent in petitioner’s habeas petition, the warden,

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almost certainly would not be the proper defendant in a civil rights action. See

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Glaus v. Anderson, 408 F.3d 382, 389 (7th Cir. 2005) (federal inmate’s habeas

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petition challenging deficient medical care was not amenable to conversion to a

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civil rights action because inmate had named the warden as the respondent).

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Petitioner has not named the particular individuals who allegedly closed his

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administrative complaint.

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Third, petitioner appears to be pursuing a theory and seeking remedies that

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would be unavailable in a converted civil rights action. Petitioner’s suit appears to

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be an action against the warden in her official capacity. But by definition, Bivens

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suits are individual-capacity suits and cannot enjoin official government action.

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See Solida v. McKelvey, 820 F.3d 1090, 1094 (9th Cir. 2016).

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petitioner’s proposed remedies — reopening his administrative complaint and

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initiating an investigation of this “widespread” problem — be available in a

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converted civil rights action. See id. (only remedy available in a Bivens action is an

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award of monetary damages from defendants in their individual capacities); see

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also Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (non-attorney

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plaintiff may not attempt to pursue claim on behalf of others). Although pro se

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filings must be construed liberally, the mandate of liberal construction does not

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require the Court to speculate about what allegations petitioner could bring in a
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Nor would

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converted civil rights action. See Martin v. Overton, 391 F.3d 710, 714 (6th Cir.

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2004) (inmate’s habeas petition challenging delayed medical treatment was

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properly dismissed where conversion to a civil rights action would require the

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federal court to “conjure allegations on a litigant’s behalf,” because the inmate

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“does bear some responsibility for identifying his own claims before the court”).

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In sum, it would be inappropriate to convert petitioner’s habeas petition to a

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civil rights action under the current circumstances.

Should petitioner wish to

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pursue his claims further, he should do so by filing a separate civil rights complaint

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that is properly brought under Bivens.

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For the foregoing reasons, IT IS ORDERED that this action be summarily

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dismissed without prejudice, pursuant to Rule 4 of the Rules Governing Section

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2254 Cases in the United States District Courts.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: June 26, 2017

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DAVID O. CARTER
UNITED STATES DISTRICT JUDGE

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