Geiger v. Adler et al

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jennifer L. Thurston on 9/21/2011 recommending that 25 MOTION for TEMPORARY RESTRAINING ORDER filed by Dan S. Geiger be DENIED. Referred to Judge Anthony W. Ishii; Objections to F&R due by 10/10/2011. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9
EASTERN DISTRICT OF CALIFORNIA
10
11

DAN S. GEIGER,

12
13

Petitioner,
v.

14
NEIL H. ADLER, Warden,
15
Respondent.
16

)
)
)
)
)
)
)
)
)
)
)

1:10-cv-00715-AWI-JLT HC
FINDINGS AND RECOMMENDATIONS TO
DENY MOTION FOR TEMPORARY
RESTRAINING ORDER (Doc. 25)
ORDER REQUIRING THAT OBJECTIONS
BE FILED WITHIN FIFTEEN DAYS

17
18

PROCEDURAL HISTORY

19

Petitioner, who is presently confined at the Taft Correctional Institution (“TCI”) in Taft,

20

California and is represented by counsel, is proceeding with a petition for writ of habeas corpus

21

pursuant to 28 U.S.C. § 2241.

22

In the instant petition, Petitioner alleges that he has been in the custody of the Bureau of

23

Prisons (“BOP”) since 2004, following a conviction in the United States District Court for the

24

Eastern District of Tennessee for violations of 18 U.S.C. § 1343 (wire fraud), 18 U.S.C. § 1954

25

(graft), 18 U.S.C. § 1956(h)(conspiracy to commit money laundering), and U.S.C. 18 § 1957

26

(engaging in monetary transactions in property derived from specific unlawful activity). (Doc. 1, pp.

27

1-2). Petitioner further alleges that, despite Petitioner’s “clean” record in prison, Respondent has

28

refused Petitioner’s request for a transfer to a Residential Re-entry Center (“RRC”) to serve the

U .S. D istrict C ourt
E. D . C alifornia

1

1

remainder of his sentence pursuant to 18 U.S.C. § 3621(b). (Id., p. 2). Petitioner contends that

2

Respondent has failed to properly consider any of the mandatory individualized factors concerning

3

inmates who apply for RRC placement, as contained in § 3621(b). (Id., p. 3). The petition also

4

contains various complaints about the conditions of Petitioner’s confinement and the prison

5

personnel’s purported retaliation against Petitioner.

6

On July 2, 2010, Respondent filed an Answer to the petition. (Doc. 12). On August 4, 2010,

7

Petitioner filed his Traverse. (Doc. 19). The matter is presently awaiting issuance of a decision on

8

the merits of the petition.

9

During the pendency of the petition, however, Petitioner’s counsel has made numerous

10

attempts to expedite issuance of such a decision on the merits. On December 14, 2010, Petitioner’s

11

counsel filed a request for status. (Doc. 20). In its order denying Petitioner’s request for status, the

12

Court advised Petitioner and his counsel that due to the large volume of prisoner cases on the Court’s

13

docket, cases were taken in the order in which they are received, that expediting a case was unfair to

14

other inmates awaiting decisions on their petitions, and that the Court would decide Petitioner’s case

15

in the proper order.

16

Despite such an admonishment, Petitioner’s counsel filed a motion for summary judgment on

17

May 27, 2011. Given the nature of a habeas corpus petition, Anderson v. Butler, 886 F.2d 111, 113

18

(5th Cir. 1989) (modern habeas corpus procedure has the same function as an ordinary appeal);

19

O’Neal v. McAnnich, 513 U.S. 440, 442, 115 S.Ct. 992 (1995) (federal court’s function in habeas

20

corpus proceedings is to “review errors in state criminal trials”(emphasis omitted)), motions for

21

summary judgment are unnecessary because petitions may be decided immediately by the Court

22

following submission of the pleadings provided no material issues of fact exist. See, 1 J. Liebman,

23

Federal Habeas Corpus Practice and Procedure, § 17.3 (1988) (The habeas corpus statute

24

authorizes -- indeed, it seems to require -- the court treat the petition itself as the equivalent of a

25

petitioner initiated summary judgment motion). Thus, given that the case was already ripe for

26

decision, Petitioner’s motion for summary judgment appears to be yet another attempt by Petitioner’s

27
28
U .S. D istrict C ourt
E. D . C alifornia

2

1
2

counsel to expedite the case, something this Court has repeatedly refused to do.1
Now, Petitioner’s counsel has filed the instant motion for a temporary restraining order.

3

(Doc. 25). The motion alleges that Respondent has engaged in a pattern of retaliation against

4

Petitioner, based on Petitioner’s pursuit of various administrative remedies, that include, inter alia,

5

the following: (1) denial of Petitioner’s request for a one-day furlough to attend his daughter’s

6

wedding; (2) Respondent’s denial of one or more visits by Petitioner’s counsel to TCI on the

7

grounds that the requests were not made with 24-hour notice; (3) Respondent’s refusal to permit

8

additional requests for unmonitored legal calls without proof that communication between counsel

9

and Petitioner by other means is not adequate and in the absence of an imminent court deadline; (4)

10

unlawful limitations on the amount of time Petitioner is permitted to spend on the telephone with his

11

attorney; and, (5) denial of Petitioner’s request for a legal furlough to attend a deposition on August

12

19, 2011 in Las Vegas in connection with a civil suit initiated by Petitioner against his former

13

attorney(s), thus requiring all counsel in the case to travel from Las Vegas to Taft, California to

14

conduct the deposition. (Doc. 25, pp. 6-12).

15

Petitioner requests the following relief: (1) preventing Respondent from limiting Petitioner’s

16

legal calls to less than three calls per week with a total duration of 45 minutes per call, with 24-hour

17

notice; (2) preventing Respondent from limiting legal visits to Petitioner on any day of the week,

18

with 24-hour notice; (3) preventing Respondent from denying Petitioner’s request to attend his own

19

deposition in a civil lawsuit filed in Las Vegas through a 3-day legal furlough; (4) preventing

20

Respondent from “intimidating Petitioner with capricious threats of solitary confinement; and (5)

21

preventing Respondent from retaliating against Petitioner through any means. (Doc. 25, p. 22).

22

Petitioner also seeks costs and attorney’s fees. (Id., p. 23).

23
24

DISCUSSION
A federal court may not entertain an action over which it has no jurisdiction. Hernandez v.

25
26
27
28

1

As counsel is aware, from the Court’s earlier admonishment, the Eastern District of California has one of the largest
habeas corpus case loads in the country. Counsel is once more strongly adm onished to comply with the rules related to
habeas litigation and to refrain from filing frivolous motions that only succeed in further delaying this Court from considering
the merits of his habeas petition. Further such conduct SHALL result in an order to show cause why sanctions should not
be imposed.

U .S. D istrict C ourt
E. D . C alifornia

3

1

Campbell, 204 F.3d 861, 865 (9th Cir. 2000). Writ of habeas corpus relief extends to a person in

2

custody under the authority of the United States if the petitioner can show that he is “in custody in

3

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(1) & (3).

4

Specifically, a habeas corpus action is the proper mechanism for a prisoner to challenge the fact or

5

duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Badea v. Cox, 931

6

F.2d 573, 574 (9th cir. 1991); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990).

7

Here, the petition meets that standard for establishing this Court’s habeas jurisdiction insofar

8

as it relates to the issue of Respondent’s refusal to place Petitioner in an RRC. As discussed, that

9

petition is presently at issue and awaiting a decision on the merits.

10

However, in this motion for a temporary restraining order, Petitioner does not challenge the

11

fact or duration of his confinement. Rather, Petitioner challenges the conditions of his confinement,

12

i.e., Respondent’s refusal to provide Petitioner with certain telephone and visitation privileges,

13

Respondent’s refusal to allow a furlough for Petitioner to attend a deposition in Las Vegas,

14

Respondent’s limitations on visitation by Petitioner’s counsel, and certain unspecified actions by

15

Respondent that Petitioner characterizes as “retaliation.” Such allegations, however, are not within

16

the Court’s habeas jurisdiction. The mere fact that Petitioner has successfully invoked the Court’s

17

habeas jurisdiction vis-a-vis RRC placement, does not mean that the Court now has jurisdiction over,

18

and Petitioner may now raise, issues related to the conditions of Petitioner’s incarceration that are

19

separate and distinct from the issue the conferred habeas jurisdiction in the first instance, i.e., RRC

20

placement.

21

Petitioner is advised that a civil rights action, not a habeas corpus proceeding, is the proper

22

mechanism for a prisoner seeking to challenge the conditions of his confinement. See Bivens v. Six

23

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971); see

24

also, e.g., Burnette v. Smith, 2009 WL 667199 at *1 (E. D. Cal. Mar. 13, 2009)(petitioner’s

25

confinement in segregated unit for security purposes and prison’s refusal to transfer petitioner should

26

be raised as Bivens action, not as § 2241 habeas action); Nostratis v. Sugrue, 2009 WL 462732 at *1

27

(E.D. Cal. Feb. 23, 2009)(petitioner’s claim that he should be transferred to another facility should

28

be raised in Bivens action, not a § 2241 habeas proceeding); Christian v. Deboo, 2007 WL 470587 at

U .S. D istrict C ourt
E. D . C alifornia

4

1

*1 (E.D. Cal. Feb. 9, 2007)(petitioner’s claim that prison had refused to transfer him to another

2

facility should be brought as Bivens action, not § 2241 proceeding); Evans v. U.S. Pentitentiary,

3

2007 WL 4212339 at *1 (E.D. Cal. Nov. 27, 2007)(petitioner is not entitled to habeas relief under §

4

2241 because his claims regarding a recent transfer and inadequate medical care concern conditions

5

of his confinement); Blow v. Bureau of Prisons, 2007 WL 2403561 at *1 (E.D. Cal. Aug. 20,

6

2007)(habeas relief under § 2241 does not extend to petitioner’s requests for transfer to another

7

facility and access to law library because they concern conditions of his confinement); Wilson v.

8

Wrigley, 2007 WL 1378024 at *2 (E.D. Cal. May 10, 2007)(petitioner is not entitled to habeas

9

corpus relief under § 2241 because his request to be transferred to another institution does not impact

10
11

the duration of his confinement).
Such district court decisions are consistent with case law from the Ninth Circuit as well as

12

other circuit courts of appeals. See e.g., Crawford v. Bell, 599 F.2d 890, 891-892 (9th Cir.

13

1979)(upholding dismissal of petition challenging conditions of confinement, the Ninth Circuit noted

14

that “the writ of habeas corpus is limited to attacks upon the legality or duration of confinement.”);

15

Blum v. Floyd, 1997 WL 599370 at *1 (Sept. 22, 1997 9th Cir. Ariz.)(petitioner’s claim of retaliatory

16

transfer by prison officials is properly brought under Bivens rather than § 2241); Glaus v. Anderson,

17

408 F.3d 382, 387-388 (7th Cir. 2005)(following U.S. Supreme Court holding in Sandin v. Conner,

18

515 U.S. 472, 484, 115 S.Ct. 2293 (1995), that restrictions on housing or movement within prison

19

are generally not cognizable in habeas unless they impose atypical and significant hardship on the

20

inmate in relation to the ordinary incidents of prison life); Boyce v. Ashcroft, 251 F.3d 911, 914

21

(10th Cir. 2001), vacated on other grounds by Boyce v. Ashcroft, 268 F.3d 953 (10th Cir.

22

2001)(“[P]risoners who want to challenge their convictions, sentences or administrative actions

23

which revoke good-time credits, or who want to invoke other sentence-shortening procedures, must

24

petition for a writ of habeas corpus;” however those “who raise constitutional challenges to other

25

prison decisions-including transfers to administrative segregation, exclusion from prison programs,

26

or suspension of privileges, e.g., conditions of confinement, must proceed under Section 1983 or

27

Bivens.”).

28

Accordingly, the Court has no habeas jurisdiction over the claims raised in the motion for a

U .S. D istrict C ourt
E. D . C alifornia

5

1

temporary restraining order and thus has no jurisdiction to grant Petitioner the injunctive relief he has

2

requested therein. Put another way, when the fact or duration of a prisoner’s confinement is

3

successfully challenged, the Court has the authority to grant the petition and no more; the Court’s

4

habeas jurisdiction does not extend to matters unrelated to the fact or duration of the inmate’s

5

incarceration. Specifically, the Court’s habeas jurisdiction does not extend to ordering that

6

Respondent provide Petitioner with a specific number of minutes or hours of telephone contact with

7

his attorney, or that Respondent grant furloughs to Petitioner, or that Respondent accommodate

8

Petitioner’s counsel’s schedule for visitations with Petitioner. Certainly, it does not extend to

9

awarding costs and attorney’s fees.

10

Indeed, even where jurisdiction exists, federal courts are reticent to micro-manage a

11

respondent’s decisions regarding the day-to-day handling of prison life. “[F]ederal courts ought to

12

afford appropriate deference and flexibility to...officials trying to manage a volatile

13

environment....Such flexibility is especially warranted in the fine-tuning of the ordinary incidents of

14

prison life....” Sandin v. Conner, 515 U.S. 472, 482 (1995). In Procunier v. Martinez, 416 U.S. 396,

15

404-405 (1974), overruled in part on other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989), the

16

Supreme Court explained the basis for this deference:

17
18
19
20
21
22
23
24
25

Traditionally, federal courts have adopted a broad hands-off attitude toward problems of
prison administration. In part this policy is the product of various limitations on the scope of
federal review of conditions in state penal institutions. More fundamentally, this attitude
springs from complementary perceptions about the nature of the problems and the efficacy of
judicial intervention. Prison administrators are responsible for maintaining internal order and
discipline, for securing their institutions against unauthorized access or escape, and for
rehabilitating, to the extent that human nature and inadequate resources allow, the inmates
placed in their custody. The Herculean obstacles to effective discharge of these duties are too
apparent to warrant explication. Suffice it to say that the problems of prisons in America are
complex and intractable, and, more to the point, they are not readily susceptible of resolution
by decree. Most require expertise, comprehensive planning, and the commitment of
resources, all of which are peculiarly within the province of the legislative and executive
branches of government. For all of those reasons, courts are ill equipped to deal with the
increasingly urgent problems of prison administration and reform. Judicial recognition of
that fact reflects no more than a healthy sense of realism.
Procunier, 416 U.S. at 404-405.

26

The Court’s recommendation to deny the motion for temporary restraining order is without

27

prejudice to Petitioner filing a Bivens civil rights action raising the claims contained in his motion

28

for temporary restraining order.

U .S. D istrict C ourt
E. D . C alifornia

6

1

RECOMMENDATIONS

2

Accordingly, the Court HEREBY RECOMMENDS that the motion for temporary

3

restraining order (Doc. 25), be DENIED without prejudice to Petitioner filing a civil rights action

4

regarding the allegations contained in his request for injunctive relief.

5

This Findings and Recommendation is submitted to the United States District Court Judge

6

assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of

7

the Local Rules of Practice for the United States District Court, Eastern District of California.

8

Within fifteen (15) days after being served with a copy, any party may file written objections with the

9

court and serve a copy on all parties. Such a document should be captioned “Objections to

10

Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and

11

filed within ten (10) court days (plus three days if served by mail) after service of the objections.

12

The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The

13

parties are advised that failure to file objections within the specified time may waive the right to

14

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

15
16

IT IS SO ORDERED.

17

Dated: September 21, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
U .S. D istrict C ourt
E. D . C alifornia

7