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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ALAN TIKAL,

) NO. ED CV 17-1554-DMG(E)
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Petitioner,
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v.
) ORDER OF DISMISSAL
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STEVE LANGFORD, Warden,
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Respondent.
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______________________________)

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BACKGROUND

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On August 3, 2017, Petitioner, a federal prisoner, filed a

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putative habeas corpus petition pursuant to 28 U.S.C. section 2241.

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Petitioner alleges that prison officials at the Federal Correctional

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Institution at Lompoc, California, transferred Petitioner to a Special

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Housing Unit (“SHU”), assertedly in retaliation for allegedly filing a

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complaint concerning the alleged destruction of Petitioner’s mail.

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Petitioner alleges that prison officials improperly justified the

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transfer as an “investigation hold.”

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Petitioner presently is denied telephone, email and recreation

Petitioner further contends that

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privileges and law library access.

Petitioner also contends that the

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SHU placement violated due process and that any administrative remedy

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is “futile.”

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“cease and desist” order preventing “all illegal intimidation” and

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damages in the sum of $500.

Petitioner seeks restoration to his previous status, a

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DISCUSSION

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Habeas corpus “is the exclusive remedy . . . for the prisoner who

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seeks ‘immediate or speedier release’ from confinement.”

Skinner v.

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Switzer, 562 U.S. 521, 525 (2011) (citation omitted).

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the fact or duration of confinement which, if successful, would result

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in immediate or speedier release falls within the “core” of habeas

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corpus.

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Grounds, 830 F.3d 922, 927-29 (9th Cir. 2016) (en banc), cert. denied,

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137 S. Ct. 645 (2017).

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for an inmate’s claim that does not fall within the “core” of habeas

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corpus, such as a challenge to the conditions of confinement.

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v. Grounds, 830 F.3d at 931-34.

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the present habeas corpus Petition to bring claims regarding allegedly

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unlawful conditions of confinement.

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such claims through the vehicle of a civil rights action pursuant to

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Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

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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

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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).
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This Court declines to exercise its discretion to convert the

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present Petition into a Bivens complaint.

“If the complaint is

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amenable to conversion on its face, meaning that it names the correct

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defendants and seeks the correct relief, the court may recharacterize

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the petition so long as it warns the pro se litigant of the

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consequences of the conversion and provides an opportunity for the

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litigant to withdraw or amend his or her complaint.”

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Grounds, 830 F.3d at 936 (citations and internal quotations omitted).

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The Petition is not “amenable to conversion on its face.”

Nettles v.

Petitioner

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identifies only the prison Warden as Respondent, does not assert that

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the Warden had any personal involvement in any alleged civil rights

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violations2 and does not name as defendants any individuals who

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purportedly violated Petitioner’s civil rights.

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Additionally, “a habeas corpus action and a prisoner civil rights

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suit differ in a variety of respects - such as . . . filing fees, the

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means of collecting them, and restrictions on future filings - that

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may make recharacterization impossible or, if possible,

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disadvantageous to the prisoner compared to a dismissal without

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prejudice of his petition for habeas corpus.”

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F.3d at 935-36 (citations and internal quotations omitted); see also

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id. at 932 n.8 (describing differences between procedural requirements

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applicable to habeas corpus actions and to civil rights actions).

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Accordingly, conversion of the present Petition into a Bivens

Nettles v. Grounds, 830

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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.
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complaint would be inappropriate.

See Glaus v. Anderson, 408 F.3d

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382, 388 (7th Cir. 2005) (court relied on myriad differences between

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habeas actions and civil rights actions in affirming district court’s

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refusal to recharacterize a habeas petition as a civil rights

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complaint); Jorgenson v. Spearman, 2016 WL 2996942, at *1 (C.D. Cal.

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May 22, 2016) (declining to convert a flawed habeas petition into a

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civil rights complaint “in light of the considerable procedural and

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substantive differences between habeas corpus and civil rights

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matters”); Wise v. Gore, 2016 WL 6581849, at *2 & n.1 (S.D. Cal.

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Nov. 7, 2016) (petition not amenable to conversion to a civil rights

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complaint where some of petitioner’s claims sounded in habeas while

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others did not).

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ORDER

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For the foregoing reasons, the Petition and the action are
dismissed without leave to amend but without prejudice.

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DATED: August 28, 2017

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____________________________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE

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Presented this 7th day

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of August, 2017, by:

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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