Dunn v. Kern County Sheriff et al

Filing 8

ORDER DISMISSING the Petition for Writ of Habeas Corpus for Failure to State Facts Warranting Habeas Relief; ORDER DECLINING to Issue a Certificate of Appealability and DIRECTING the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 4/8/2015. CASE CLOSED.(Marrujo, C)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 CHARLES ELMER DUNN, JR., Case No. 1:15-cv-00318-SKO-HC 12 ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO STATE FACTS WARRANTING HABEAS RELIEF (D0C. 1) Petitioner, 13 v. 14 15 KERN COUNTY SHERIFF et al., Respondents. 16 ORDER DECLINING TO ISSUE A CERTIFICATE OF APPELABILITY AND DIRECTING THE CLERK TO CLOSE THE CASE 17 18 Petitioner is a federal prisoner proceeding pro se and in forma 19 pauperis with a petition for writ of habeas corpus pursuant to 28 20 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has 21 consented to the jurisdiction of the United States Magistrate Judge 22 to conduct all further proceedings in the case, including the entry 23 of final judgment, by manifesting Petitioner’s consent in a writing 24 signed by Petitioner and filed by Petitioner on March 16, 2015 (doc. 25 5). Pending before the Court is the petition, which was filed on 26 March 4, 2015 27 I. Screening the Petition 28 The Rules Governing Section 2254 Cases in the United States 1 1 District Courts (Habeas Rules) are appropriately applied to 2 proceedings undertaken pursuant to 28 U.S.C. ' 2241. 3 1(b). Habeas Rule Habeas Rule 4 requires the Court to make a preliminary review 4 of each petition for writ of habeas corpus. The Court must 5 summarily dismiss a petition "[i]f it plainly appears from the 6 petition and any attached exhibits that the petitioner is not 7 entitled to relief in the district court....@ Habeas Rule 4; 8 O=Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 9 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 10 2(c) requires that a petition 1) specify all grounds of relief 11 available to the Petitioner; 2) state the facts supporting each 12 ground; and 3) state the relief requested. Notice pleading is not 13 sufficient; the petition must state facts that point to a real 14 possibility of constitutional error. Rule 4, Advisory Committee 15 Notes, 1976 Adoption; O=Bremski v. Maass, 915 F.2d at 420 (quoting 16 Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in 17 a petition that are vague, conclusory, or palpably incredible are 18 subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 19 491. 20 The Court may dismiss a petition for writ of habeas corpus 21 either on its own motion under Habeas Rule 4, pursuant to the 22 23 24 25 respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 26 2001). A petition for habeas corpus should not be dismissed without 27 leave to amend unless it appears that no tenable claim for relief 28 can be pleaded were such leave granted. 2 Jarvis v. Nelson, 440 F.2d 1 13, 14 (9th Cir. 1971). 2 Petitioner alleges he is an inmate of the Kern County Jail at 3 Lerdo pursuant to a federal judgment concerning a federal 4 supervision violation that is pending adjudication. 5 1.) (Pet., doc. 1, Petitioner challenges the custodian’s failure to pay for 6 treatment for Petitioner’s hepatitis, failure to provide him with 7 eyeglasses to allow him to see, and placement of Petitioner in 8 housing that lacks fire sprinklers or smoke alarms. (Id. at 2.) 9 Petitioner alleges the following claims in the petition: 1) the 10 failure to provide treatment for his hepatitis constitutes cruel and 11 unusual punishment and a violation of his right to the equal 12 protection of the laws; 2) denial of eyeglasses is a denial of equal 13 protection and results in Petitioner’s not being able to see well or 14 drive; and 3) the absence of fire sprinklers and smoke alarms in the 15 jail constitutes cruel and unusual punishment and a denial of equal 16 protection. (Id. at 6-7.) Petitioner seeks medical treatment and to 17 bring the jail into compliance with building codes and applicable 18 fire and safety laws. 19 II. 20 21 22 23 (Id. at 8.) Conditions of Confinement A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). 24 Relief by way of a writ of habeas corpus extends to a person in 25 custody under the authority of the United States if the petitioner 26 can show that he is “in custody in violation of the Constitution or 27 laws or treaties of the United States.” 28 (3). 28 U.S.C. § 2241(c)(1) & A habeas corpus action is the proper mechanism for a prisoner 3 1 to challenge the fact or duration of his confinement. Preiser v. 2 Rodriguez, 411 U.S. 475, 485 (1973); Tucker v. Carlson, 925 F.2d 1 3 330, 332 (9th Cir. 1990) (holding in a Bivens action that a claim 4 that time spent serving a state sentence should have been credited 5 against a federal sentence concerned the fact or duration of 6 confinement and should have been construed as a petition for writ of 7 habeas corpus pursuant to ' 28 U.S.C. ' 2241, but to the extent the 8 complaint sought damages for civil rights violations, it should be 9 construed as a Bivens action); Crawford v. Bell, 599 F.2d 890, 10 891B892 (9th Cir. 1979) (upholding dismissal of a petition 11 challenging conditions of confinement and noting that the writ of 12 habeas corpus has traditionally been limited to attacks upon the 13 legality or duration of confinement); see, Greenhill v. Lappin, 376 14 Fed. Appx. 757, 757-58 (9th Cir. 2010) (unpublished) (appropriate 15 remedy for a federal prisoner's claim that relates to the conditions 16 of his confinement is a civil rights action under Bivens; but see, 17 Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (habeas 18 corpus is available pursuant to § 2241 for claims concerning denial 19 of good time credits from subjection to greater restrictions of 20 liberty, such as disciplinary segregation, without due process of 21 law); Cardenas v. Adler, 2010 WL 2180378 (No.1:09-cv-00831-AWI-JLT22 HC, May 28, 2010) (a petitioner's challenge to the constitutionality 23 of the sanction of disciplinary segregation and his claim that the 24 disciplinary proceedings were the product of retaliation by prison 25 staff were cognizable in a habeas proceeding pursuant to ' 2241). 26 27 28 1 The reference is to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 4 1 In this district, claims concerning various prison conditions 2 brought pursuant to ' 2241 have been dismissed for lack of subject 3 matter jurisdiction with indications that an action pursuant to 4 Bivens is appropriate. See, e.g., Dyson v. Rios, 2010 WL 3516358, 5 *3 (E.D.Cal. Sept. 2, 2010) (claim challenging placement in a 6 special management housing unit in connection with a disciplinary 7 violation); Burnette v. Smith, 2009 WL 667199 at *1 (E.D.Cal. Mar. 8 13, 2009) (petition seeking a transfer and prevention of retaliation 9 by prison staff); Evans v. U.S. Penitentiary, 2007 WL 4212339 at *1 10 (E.D.Cal. Nov. 27, 2007) (claims brought pursuant to ' 2241 11 regarding a transfer and inadequate medical care). 12 Here, Petitioner’s claims concern conditions of confinement 13 that do not bear on the legality or duration of his confinement. 14 Because these claims relate solely to the conditions of his 15 confinement, Petitioner has not stated facts that would warrant 16 habeas relief in this proceeding, and the Court lacks habeas corpus 17 jurisdiction over Petitioner’s claims pursuant to § 2241. 18 III. Remedy 19 Although the Court lacks habeas corpus jurisdiction over the 20 claims concerning conditions of confinement, the Court could 21 construe Petitioner’s claims as a civil rights complaint brought 22 pursuant to Bivens. 23 (1971). See, Wilwording v. Swenson, 404 U.S. 249, 251 However, the Court declines to construe the petition as a 24 civil rights complaint because of differences in the procedures 25 undertaken in habeas proceedings and civil rights actions. 26 First, if the petition were converted to a civil rights 27 complaint, Petitioner would be obligated to pay the $350 filing fee 28 for a civil action, whether in full or through withdrawals from his 5 1 prison trust account in accordance with the availability of funds. 2 28 U.S.C. '' 1914, 1915(b). The dismissal of this action at the 3 pleading stage would not terminate Petitioner's duty to pay the $350 4 filing fee. Here, the petition was not accompanied by the $350 5 filing fee or an authorization by Petitioner to have the $350 filing 6 fee deducted from his trust account pursuant to 28 U.S.C. ' 1915(b). 7 Further, 42 U.S.C. ' 1997e(a) provides, ANo action shall be 8 brought with respect to prison conditions under section 1983 of this 9 title, or any other Federal law, by a prisoner confined in any jail, 10 prison, or other correctional facility until such administrative 11 remedies as are available are exhausted.@ This provision requires 12 exhaustion Airrespective of the forms of relief sought and offered 13 through administrative avenues.@ 14 n.6 (2001). Booth v. Churner, 532 U.S. 731, 741 Here, it is unclear whether Petitioner has exhausted 15 any administrative remedies. 16 Petitioner has also failed to identify the capacity in which 17 the named respondent would be sued for purposes of a civil rights 18 claim, which is critical to the issue of sovereign immunity. In 19 addition, if the petition were converted to a civil rights 20 complaint, the Court would be obligated to screen it pursuant to the 21 screening provisions of the Prisoner Litigation Reform Act of 1995. 22 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). It is not clear that 23 all of Petitioner’s allegations state civil rights claims. If the 24 pleading ultimately were dismissed for failure to state a claim upon 25 which relief may be granted, such a dismissal could count as a 26 “strike” against Petitioner for purposes of 28 U.S.C. § 1915(g) and 27 any future civil rights action he might bring. 28 6 1 Based on the foregoing, the petition will be dismissed without 2 prejudice so Petitioner may determine whether or not he wishes to 3 raise his present claims through a properly submitted civil rights 4 complaint. 5 IV. Certificate of Appealability 6 In an abundance of caution, the Court will consider whether 7 Petitioner is entitled to a certificate of appealability. 8 Unless a circuit justice or judge issues a certificate of 9 appealability, an appeal may not be taken to the Court of Appeals 10 from the final order in a habeas proceeding in which the detention 11 complained of arises out of process issued by a state court. 28 12 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 13 (2003). A district court must issue or deny a certificate of 14 appealability when it enters a final order adverse to the applicant. 15 Habeas Rule 11(a). 16 A certificate of appealability may issue only if the applicant 17 makes a substantial showing of the denial of a constitutional right. 18 ' 2253(c)(2). Under this standard, a petitioner must show that 19 reasonable jurists could debate whether the petition should have 20 been resolved in a different manner or that the issues presented 21 were adequate to deserve encouragement to proceed further. Miller- 22 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 23 473, 484 (2000)). A certificate should issue if the Petitioner 24 shows that jurists of reason would find it debatable whether: (1) 25 the petition states a valid claim of the denial of a constitutional 26 right, and (2) the district court was correct in any procedural 27 ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). 28 7 In determining this issue, a court conducts an overview of the 1 2 claims in the habeas petition, generally assesses their merits, and 3 determines whether the resolution was debatable among jurists of 4 reason or wrong. Id. An applicant must show more than an absence 5 of frivolity or the existence of mere good faith; however, the 6 applicant need not show that the appeal will succeed. Miller-El v. 7 Cockrell, 537 U.S. at 338. Here, it does not appear that reasonable jurists could debate 8 9 whether the petition should have been resolved in a different 10 manner. Petitioner has not made a substantial showing of the denial 11 of a constitutional right. Accordingly, the Court will decline to 12 issue a certificate of appealability. 13 V. Order 14 Based on the foregoing, it is ORDERED that: 15 1) The petition for writ of habeas corpus is DISMISSED without 16 prejudice for Petitioner’s failure to state facts entitling him to 17 habeas corpus relief; 2) The Court DECLINES to issue a certificate of appealability; 18 19 and 20 3) The Clerk is DIRECTED to close the action because the 21 dismissal terminates it in its entirety. 22 23 IT IS SO ORDERED. 24 25 Dated: April 8, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 26 27 28 8

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?