Alan Tikal v. Steve Langford

Filing 3

ORDER OF DISMISSAL by Judge Dolly M. Gee. The Petition and the action are dismissed without leave to amend but without prejudice. (sp)

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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 16 ALAN TIKAL, ) NO. ED CV 17-1554-DMG(E) ) Petitioner, ) ) v. ) ORDER OF DISMISSAL ) STEVE LANGFORD, Warden, ) ) Respondent. ) ) ______________________________) 17 18 BACKGROUND 19 20 On August 3, 2017, Petitioner, a federal prisoner, filed a 21 putative habeas corpus petition pursuant to 28 U.S.C. section 2241. 22 Petitioner alleges that prison officials at the Federal Correctional 23 Institution at Lompoc, California, transferred Petitioner to a Special 24 Housing Unit (“SHU”), assertedly in retaliation for allegedly filing a 25 complaint concerning the alleged destruction of Petitioner’s mail. 26 Petitioner alleges that prison officials improperly justified the 27 transfer as an “investigation hold.” 28 Petitioner presently is denied telephone, email and recreation Petitioner further contends that 1 privileges and law library access. Petitioner also contends that the 2 SHU placement violated due process and that any administrative remedy 3 is “futile.” 4 “cease and desist” order preventing “all illegal intimidation” and 5 damages in the sum of $500. Petitioner seeks restoration to his previous status, a 6 7 DISCUSSION 8 9 Habeas corpus “is the exclusive remedy . . . for the prisoner who 10 seeks ‘immediate or speedier release’ from confinement.” Skinner v. 11 Switzer, 562 U.S. 521, 525 (2011) (citation omitted). 12 the fact or duration of confinement which, if successful, would result 13 in immediate or speedier release falls within the “core” of habeas 14 corpus. 15 Grounds, 830 F.3d 922, 927-29 (9th Cir. 2016) (en banc), cert. denied, 16 137 S. Ct. 645 (2017). 17 for an inmate’s claim that does not fall within the “core” of habeas 18 corpus, such as a challenge to the conditions of confinement. 19 v. Grounds, 830 F.3d at 931-34. 20 the present habeas corpus Petition to bring claims regarding allegedly 21 unlawful conditions of confinement. 22 such claims through the vehicle of a civil rights action pursuant to 23 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 24 403 U.S. 388 (1971) (“Bivens”).1 A challenge to Preiser v. Rodriguez, 411 U.S. 475, 487-89 (1973); Nettles v. A civil rights action is the exclusive vehicle Nettles Accordingly, Petitioner may not use Petitioner may attempt to assert 25 26 1 27 28 The Court expresses no opinion regarding whether a Bivens remedy is available to Petitioner on the claims alleged in the Petition. See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (limiting reach of Bivens remedies). 2 1 This Court declines to exercise its discretion to convert the 2 present Petition into a Bivens complaint. “If the complaint is 3 amenable to conversion on its face, meaning that it names the correct 4 defendants and seeks the correct relief, the court may recharacterize 5 the petition so long as it warns the pro se litigant of the 6 consequences of the conversion and provides an opportunity for the 7 litigant to withdraw or amend his or her complaint.” 8 Grounds, 830 F.3d at 936 (citations and internal quotations omitted). 9 The Petition is not “amenable to conversion on its face.” Nettles v. Petitioner 10 identifies only the prison Warden as Respondent, does not assert that 11 the Warden had any personal involvement in any alleged civil rights 12 violations2 and does not name as defendants any individuals who 13 purportedly violated Petitioner’s civil rights. 14 15 Additionally, “a habeas corpus action and a prisoner civil rights 16 suit differ in a variety of respects - such as . . . filing fees, the 17 means of collecting them, and restrictions on future filings - that 18 may make recharacterization impossible or, if possible, 19 disadvantageous to the prisoner compared to a dismissal without 20 prejudice of his petition for habeas corpus.” 21 F.3d at 935-36 (citations and internal quotations omitted); see also 22 id. at 932 n.8 (describing differences between procedural requirements 23 applicable to habeas corpus actions and to civil rights actions). 24 Accordingly, conversion of the present Petition into a Bivens Nettles v. Grounds, 830 25 2 26 27 28 See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates on a theory of respondeat superior”). A supervisor “is only liable for his or her own misconduct,” and is not “accountable for the misdeeds of [his or her] agents.” Id. at 677. 3 1 complaint would be inappropriate. See Glaus v. Anderson, 408 F.3d 2 382, 388 (7th Cir. 2005) (court relied on myriad differences between 3 habeas actions and civil rights actions in affirming district court’s 4 refusal to recharacterize a habeas petition as a civil rights 5 complaint); Jorgenson v. Spearman, 2016 WL 2996942, at *1 (C.D. Cal. 6 May 22, 2016) (declining to convert a flawed habeas petition into a 7 civil rights complaint “in light of the considerable procedural and 8 substantive differences between habeas corpus and civil rights 9 matters”); Wise v. Gore, 2016 WL 6581849, at *2 & n.1 (S.D. Cal. 10 Nov. 7, 2016) (petition not amenable to conversion to a civil rights 11 complaint where some of petitioner’s claims sounded in habeas while 12 others did not). 13 14 ORDER 15 16 17 For the foregoing reasons, the Petition and the action are dismissed without leave to amend but without prejudice. 18 19 DATED: August 28, 2017 20 21 ____________________________ DOLLY M. GEE UNITED STATES DISTRICT JUDGE 22 23 Presented this 7th day 24 of August, 2017, by: 25 26 27 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 28 4

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