Gaytan v. Hogans

Filing 8

FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition Without Prejudice and to DIRECT the Clerk to Close the Action, signed by Magistrate Judge Sheila K. Oberto on 3/13/2013. referred to Judge O'Neil. Objections to F&R Due Within Thirty. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAIME GAYTAN,

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Petitioner,

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v.
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NORRIS HOGANS,
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Respondent.
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1:13-cv—00293-LJO-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT
PREJUDICE (DOC. 1) AND
TO DIRECT THE CLERK TO CLOSE
THE ACTION
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a federal prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2241.

The matter has been referred to the

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
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Rules 302 and 304.

Pending before the Court is the petition,

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which was filed on February 28, 2013.
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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; the petition must state facts that point to a

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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 at 491.

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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.

The Court may dismiss a petition for writ of habeas corpus

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

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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).

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dismissed without leave to amend unless it appears that no

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tenable claim for relief can be pleaded were such leave granted.

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

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Advisory Committee Notes to Habeas Rule

A petition for habeas corpus should not be

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

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Correctional Institution (TCI) serving a sentence of 240 months

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imposed on June 21, 2005, in the United States District Court for

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the Central District of California for having violated 21 U.S.C.

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§§ 841(b)(1)(A) and 846.

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2021.

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in December 2012 and January 2013, alleging that the rejection

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and return of publications in Petitioner’s incoming mail violated

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due process of law established by 28 C.F.R. § 540.71 and Federal

His projected release date is July 28,

Petitioner challenges actions of prison staff undertaken

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Bureau of Prisons (BOP) policy statement 5266.11(2)(d), and

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Petitioner’s First Amendment rights.

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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 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 should have

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A habeas corpus action is the proper

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

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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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been construed as a petition for writ of habeas corpus pursuant

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

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sought damages for civil rights violations, it should be

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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) (unpublished) (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); but see, Bostic v. Carlson, 884 F.2d 1267, 1269 (9th

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Cir. 1989) (habeas corpus is available pursuant to § 2241 for

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claims concerning denial of good time credits or subjection to

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greater restrictions of liberty, such as disciplinary

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segregation, without due process of law); Cardenas v. Adler, 2010

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WL 2180378 (No. 1:09-cv-00831-AWI-JLT-HC, May 28, 2010) (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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Here, Petitioner’s claims concern conditions of confinement

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

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his confinement.

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conditions of his confinement, the Court lacks habeas corpus

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jurisdiction over the claims pursuant to § 2241.

Because these claims relate solely to the

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III.

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Although the Court lacks habeas corpus jurisdiction over the

Remedy

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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).

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as a civil rights complaint because of differences in the

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procedures undertaken in habeas proceedings and civil rights

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actions.

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

However, the Court declines to construe the petition

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.

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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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28 U.S.C. §§ 1914, 1915(b).

The dismissal of this

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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1997e(a) requires exhaustion “irrespective of the forms of relief

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sought and offered through administrative avenues.”

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

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administrative remedies are still available to Petitioner.

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Section

Booth v.

Here, it is possible that

Additionally, Petitioner has failed to identify the capacity
in which the named respondent would be sued for purposes of a
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civil rights claim – which is critical to the issue of sovereign

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immunity.

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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”

Finally, if the petition were converted to a civil

28 U.S.C. § 1915A(b); 42 U.S.C.

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

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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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Based on the foregoing, the court concludes that it is

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appropriate to dismiss the petition without prejudice so that

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Petitioner 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.2

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IV.

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Accordingly, it is RECOMMENDED that:

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1)

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Recommendations

The petition for writ of habeas corpus be DISMISSED

without prejudice for lack of subject matter jurisdiction; and
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The Clerk be DIRECTED to close the action because the

dismissal terminates it in is entirety.

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These findings and recommendations are submitted to the

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United States District Court Judge assigned to the case, pursuant

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Issuance of a certificate of appealability is not addressed in this
order because a certificate of appealability is not required to appeal the
denial of a petition under § 2241. Forde v. United States Parole Commission,
114 F.3d 878, 879 (9th Cir. 1997). This is because the plain language of
§ 2253(c)(1) does not require a certificate with respect to an order that is
not a final order in a habeas proceeding in which the detention complained of
arises out of process issued by a state court. Id.

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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

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the Local Rules of Practice for the United States District Court,

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Eastern District of California.

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being served with a copy, any party may file written objections

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with the Court and serve a copy on all parties.

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should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.”

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and filed within fourteen (14) days (plus three (3) days if

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served by mail) after service of the objections.

Within thirty (30) days after

Such a document

Replies to the objections shall be served

The Court will

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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

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§ 636 (b)(1)(C).

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objections within the specified time may waive the right to

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appeal the District Court’s order.

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1153 (9th Cir. 1991).

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

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IT IS SO ORDERED.
Dated:
ie14hj

March 13, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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