Brown v. Sanders

Filing 4

ORDER Dismissing the Petition without Prejudice; ORDER Directing the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 2/20/12. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH ANTHONY BROWN,
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Petitioner,
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v.
LINDA SANDERS,

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Respondent.

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1:12-cv—00146-SKO-HC
ORDER DISMISSING THE PETITION
WITHOUT PREJUDICE (DOC. 1)
ORDER DIRECTING THE CLERK TO
CLOSE THE CASE

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Petitioner is a federal prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
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Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to
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the jurisdiction of the United States Magistrate Judge to conduct
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all further proceedings in the case, including the entry of final
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judgment, by manifesting consent in a signed writing filed by
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Petitioner on February 13, 2012 (doc. 3).

Pending before the

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Court is the petition, which was filed on January 31, 2012.
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I.

Screening the Petition

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The Rules Governing Section 2254 Cases in the United States
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District Courts (Habeas Rules) are appropriately applied to
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proceedings undertaken pursuant to 28 U.S.C. § 2241.

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1(b).

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review of each petition for writ of habeas corpus.

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must summarily dismiss a petition "[i]f it plainly appears from

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the petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court....”

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O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also

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Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

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2(c) requires that a petition 1) specify all grounds of relief

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available to the Petitioner; 2) state the facts supporting each

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ground; and 3) state the relief requested.

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not sufficient; rather, the petition must state facts that point

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to a real possibility of constitutional error.

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Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at

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420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).

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Allegations in a petition that are vague, conclusory, or palpably

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incredible are subject to summary dismissal.

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Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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Habeas Rule

Habeas Rule 4 requires the Court to make a preliminary
The Court

Habeas Rule 4;

Habeas Rule

Notice pleading is

Rule 4, Advisory

Hendricks v.

Further, the Court may dismiss a petition for writ of habeas

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corpus either on its own motion under Habeas Rule 4, pursuant to

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the respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

Advisory Committee Notes to Habeas Rule

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A petition for habeas corpus should not be dismissed without

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leave to amend unless it appears that no tenable claim for relief

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can be pleaded were such leave granted.

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F.2d 13, 14 (9th Cir. 1971).
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Jarvis v. Nelson, 440

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Here, Petitioner alleges that he is an inmate of the United

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States Prison at Lompoc, California (USP Lompoc), serving a

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sentence imposed in the District of Columbia.

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complains of various conditions of confinement that he alleges he

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experienced while incarcerated at the United States Prison at

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Atwater, California, as well as at USP Lompoc, including threats

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and verbal abuse, food poisoning, undue exposure to other

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inmates, failure to be served breakfast, denial of psychiatric

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services, and denial of access to recreation and law library

Petitioner

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services.

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conditions were retaliatory.

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prison outside of the Bureau of Prisons to avoid further

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retaliation.

(Pet. 3, 6-8.)

Petitioner alleges that these
He seeks transfer to a contracted

(Pet. 1-3, 6-8.)

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Petitioner also complains of procedures and delay relating

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to a “DHO” hearing, with uncertain references to placement in a

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locked down facility.

(Id.)

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II.

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A federal court may not entertain an action over which it

Conditions of Confinement

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has no jurisdiction.

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(9th Cir. 2000).

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Hernandez v. Campbell, 204 F.3d 861, 865

Relief by way of a writ of habeas corpus extends to a person

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in custody under the authority of the United States if the

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petitioner can show that he is “in custody in violation of the

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Constitution or laws or treaties of the United States.”

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U.S.C. § 2241(c)(1) & (3).

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mechanism for a prisoner to challenge the fact or duration of his

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confinement.

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Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990) (holding in

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A habeas corpus action is the proper

Preiser v. Rodriguez, 411 U.S. 475, 485 (1973);

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a Bivens1 action that a claim that time spent serving a state

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sentence should have been credited against a federal sentence

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concerned the fact or duration of confinement and thus should

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have been construed as a petition for writ of habeas corpus

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pursuant to § 28 U.S.C. § 2241, but that to the extent that the

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complaint sought damages for civil rights violations, it should

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be construed as a Bivens action); Crawford v. Bell, 599 F.2d 890,

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891–892 (9th Cir. 1979) (upholding dismissal of a petition

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challenging conditions of confinement and noting that the writ of

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habeas corpus has traditionally been limited to attacks upon the

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legality or duration of confinement); see, Greenhill v. Lappin,

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376 Fed. Appx. 757, 757-58 (9th Cir. 2010) (holding that the

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appropriate remedy for a federal prisoner's claim that relates to

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the conditions of his confinement is a civil rights action under

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Bivens; and see, e.g., Cardenas v. Adler, 2010 WL 2180378

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(No.1:09-cv-00831-AWI-JLT-HC, May 28, 2010) (holding that a

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petitioner's challenge to the constitutionality of the sanction

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of disciplinary segregation and his claim that the disciplinary

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proceedings were the product of retaliation by prison staff were

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cognizable in a habeas proceeding pursuant to § 2241).

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Claims concerning various prison conditions that have been

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brought pursuant to § 2241 have been dismissed in this district

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for lack of subject matter jurisdiction with indications that an

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action pursuant to Bivens is appropriate.

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Rios, 2010 WL 3516358, *3 (No. 1:10-cv-00382-DLB (HC), E.D.Cal.

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Sept. 2, 2010) (a claim challenging placement in a special

See, e.g., Dyson v.

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The reference is to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971).

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management housing unit in connection with a disciplinary

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violation); Burnette v. Smith, 2009 WL 667199 at *1 (E.D.Cal.

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Mar. 13, 2009) (a petition seeking a transfer and prevention of

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retaliation by prison staff); Evans v. U.S. Pentitentiary, 2007

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WL 4212339 at *1 (E.D.Cal. Nov. 27, 2007) (claims brought

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pursuant to § 2241 regarding a transfer and inadequate medical

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care).

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Here, Petitioner seeks an order directing his transfer so he

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may avoid conditions of confinement he alleges are discriminatory

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and retaliatory.

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of confinement that do not bear a relationship to the legality or

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duration of his confinement.

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to the conditions of his confinement, it is concluded that the

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Court lacks habeas corpus jurisdiction over the claims pursuant

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to § 2241.

In this respect, his claims concern conditions

Because these claims relate solely

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III.

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Petitioner’s allegations concerning a hearing and sanctions

Absence of Habeas Corpus Jurisdiction over the Person

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are uncertain.

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seeking to allege facts concerning a disciplinary proceeding that

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affected the legality or duration of his confinement, and he is

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raising a claim that would otherwise be within the scope of the

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Court’s habeas corpus jurisdiction pursuant to § 2241.

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as Petitioner complains of disciplinary proceedings resulting in

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sanctions affecting the legality or duration of his confinement,

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this Court lacks jurisdiction over the person of Petitioner’s

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custodian.

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Nevertheless, it is possible that Petitioner is

Insofar

Title 28 U.S.C. § 2241(a) provides that writs of habeas
corpus may be granted by the district courts “within their
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respective jurisdictions.”

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upon the prisoner, but upon the prisoner’s custodian.

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30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495

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(1973).

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under 28 U.S.C. § 2241 must file the petition in the judicial

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district of the petitioner's custodian.

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610 F.2d 672, 677 (9th Cir. 1990).

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penitentiary where a prisoner is confined constitutes the

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custodian who must be named in the petition, and the petition

A writ of habeas corpus operates not
Braden v.

A petitioner filing a petition for writ of habeas corpus

Brown v. United States,

The warden of the

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must be filed in the district of confinement.

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Padilla, 542 U.S. 426, 446-47 (2004).

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serve the custodian deprives the Court of personal jurisdiction.

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Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

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Id.; Rumsfeld v.

A failure to name and

Petitioner is confined at USP Lompoc, which is located

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within the Central District of California.

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intends to file a petition pursuant to § 2241 with respect to a

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claim concerning a disciplinary proceeding that affected the

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legality or duration of his confinement, Petitioner must file his

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claim in the Central District because the Eastern District lacks

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jurisdiction over the person of Petitioner’s custodian.

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Accordingly, any such claim raised in the petition should be

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dismissed.

Thus, if Petitioner

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IV.

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Although the Court lacks habeas corpus jurisdiction over the

Disposition

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claims concerning conditions of confinement, the Court could

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construe Petitioner’s claims as a civil rights complaint brought

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pursuant to Bivens.

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251 (1971).

See, Wilwording v. Swenson, 404 U.S. 249,

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However, the Court declines to construe the petition as a

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civil rights complaint because of various differences in the

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procedures undertaken in habeas proceedings on the one hand, and

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civil rights actions on the other.

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First, if the petition were converted to a civil rights

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complaint, Petitioner would be obligated to pay the $350 filing

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fee for a civil action, whether in full or through withdrawals

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from his prison trust account in accordance with the availability

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of funds.

28 U.S.C. §§ 1914, 1915(b).

The dismissal of this

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action at the pleading stage would not terminate Petitioner's

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duty to pay the $350 filing fee.

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accompanied by the $350 filing fee or an authorization by

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Petitioner to have the $350 filing fee deducted from his trust

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account pursuant to 28 U.S.C. § 1915(b).

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Here, the petition was not

Further, 42 U.S.C. § 1997e(a) provides, “No action shall be

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brought with respect to prison conditions under section 1983 of

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this title, or any other Federal law, by a prisoner confined in

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any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.”

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established that § 1997e(a) requires exhaustion “irrespective of

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the forms of relief sought and offered through administrative

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avenues.”

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Petitioner indicates that at the second level of review,

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investigation by internal affairs is proceeding, and there is no

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response date.

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Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).

It is

Here,

(Pet. 3.)

Another omission from the petition that affects the Court’s

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decision not to consider it as a civil rights complaint is the

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Petitioner’s failure to identify the capacity in which the named
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respondent would be sued for purposes of a civil rights claim,

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which is critical to the issue of sovereign immunity.

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In addition, if the petition were converted to a civil

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rights complaint, the Court would be obligated to screen it

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pursuant to the screening provisions of the Prisoner Litigation

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Reform Act of 1995.

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§ 1997e(c)(1).

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disparate allegations state civil rights claims.

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ultimately were dismissed for failure to state a claim upon which

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relief may be granted, such a dismissal could count as a “strike”

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against Petitioner for purposes of 28 U.S.C. § 1915(g) and any

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future civil rights action he might bring.

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28 U.S.C. § 1915A(b); 42 U.S.C.

It is not clear that all of Petitioner’s
If the pleading

Based on the foregoing, the Court concludes that the

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petition should be dismissed without prejudice so that Petitioner

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himself may determine whether or not he wishes to raise his

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present claims through a properly submitted civil rights

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complaint.

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Accordingly, it is ORDERED that:

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1)

The petition for writ of habeas corpus is DISMISSED

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without prejudice for lack of subject matter jurisdiction and

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lack of personal jurisdiction over the named Respondent; and

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2)

The Clerk is DIRECTED to close the action because the

dismissal terminates it in is entirety.

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IT IS SO ORDERED.

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Dated:
ie14hj

February 20, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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