Tarver v. Matevousian
Filing
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FINDINGS and RECOMMENDATIONS Recommending Dismissal of the Petition, signed by Magistrate Judge Sandra M. Snyder on 10/14/15. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LAMAR TARVER,
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CASE NO. 1:15-CV-532-LJO-SMS (HC)
Petitioner,
v.
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF THE
PETITION
ANDRE MATEVOUSIAN,
Respondent.
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Petitioner is a federal prisoner proceeding in pro se and in forma pauperis with a petition
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for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (“Section 2241”). Petitioner is incarcerated
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at a United States penitentiary in Atwater, California. However, because Petitioner challenges the
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conditions of his confinement, and not the fact or duration of his confinement, his petition does
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not state a cognizable claim for federal habeas relief and should be dismissed without prejudice to
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filing a civil rights action.
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COGNIZABILITY
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The Court is required to screen pleadings filed by prisoners, and to dismiss them to the
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extent they fail to state a claim. 28 U.S.C. § 1915A(a).
Under Section 2241, habeas corpus relief is available to a federal prisoner in custody under
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the authority of the United States if he can show he is “in custody in violation of the Constitution
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or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(1) & (3). A Section 2241 habeas
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petition may be filed by a federal prisoner to attack the execution of his sentence. White v.
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Lambert, 370 F.3d 1002, 1009 (9th Cir. 2004). A civil rights action, commonly called a Bivens
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action, is the proper mechanism for a prisoner seeking to challenge the conditions of his
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confinement, not a habeas corpus proceeding. See Bivens v. Six Unknown Named Agents of
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Federal Bureau of Narcotics, 403 U.S. 388 (1971); and see Love v. Matevousian, 2015 U.S. Dist.
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LEXIS 109045; 2 (E.D. Cal. Aug. 18, 2015)(Section 2241complaint that prison officials tampered
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with the petitioner’s mail challenged the conditions of confinement, which is cognizable in a civil
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rights action rather than a habeas corpus action); Green v. Fox, 2015 U.S. Dist. LEXIS 109131,
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*12 (C.D. Cal. Aug. 17, 2015)(the portion of a section 2241 petition related to disciplinary
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findings resulting in loss of privileges constitutes a conditions of confinement claim that must be
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raised as a Bivens claim, not in a Section 2241 habeas action because this alleged loss does not
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implicate the length or execution of the petitioner’s sentence); Sanders v. Ponce, 2015 U.S. Dist.
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LEXIS 109095, *1 (E.D. Cal. Aug. 18, 2015)(petition brought under Section 2241 challenging
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conditions of confinement act is dismissed and advised to bring Bivens action); Burnette v. Smith,
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2009 U.S. Dist. LEXIS 20219, *2 (E.D. Cal. Mar. 12, 2009)(a civil rights action, not habeas
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corpus proceeding under Section 2241, is the proper mechanism for prisoner’s claims regarding
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transfer to medium-security institution, availability of law library, and prohibiting retaliation by
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prison officials); and cf. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (state prisoners should
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challenge conditions of confinement in a civil rights action under 42 U.S.C. § 1983 not in a habeas
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corpus proceeding).
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Here, Petitioner alleges that he has been obstructed in his ability to access the Bureau of
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Prisons administrative remedy process. He alleges that his records maintained in the Bureau of
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Prisons’ files are inaccurate. Petitioner does not state in this petition what inaccuracy is being
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maintained. Seeking to address the inaccuracy, Petitioner attempted to file an informal complaint
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(BP-8 form) to a Counselor Hasset in March 2015. He expected to have a result within 72 hours.
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After a week, Counselor Hasset informed Petitioner that he had lost his form and asked him to file
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another, which Petitioner did. Petitioner was informed that his second form was lost. He submitted
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a third, to which no answer was received. Petitioner attempted to inform the warden and was
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directed to see the administrative remedy coordinator, who refused to accept his complaint.
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Petitioner then attempted to have his unit manager intervene, but with no avail. Petitioner requests
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that this court direct the prison staff to process his complaint.
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Petitioner does not challenge the fact or duration of his confinement; rather, he challenges
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the conditions of his confinement. Hence, he has not stated a cognizable claim for federal habeas
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relief. Petitioner is advised that a civil rights action is the proper mechanism under which to bring
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a challenge to the conditions of confinement.
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RECOMMENDATION
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Therefore, it is hereby RECOMMENDED that the petition be DISMISSED without
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prejudice to filing a Bivens civil rights action.
These Findings and Recommendations are submitted to the assigned United States District
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Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
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Rules of Practice for the United States District Court, Eastern District of California. Within thirty
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(30) days after service of the Findings and Recommendation, Petitioner may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendation.” The assigned District Judge
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will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Petitioner is
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advised that failure to file objections within the specified time may result in the waiver of rights on
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appeal. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
October 14, 2015
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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