Fykes v. Zuniga et al

Filing 10

FINDINGS and RECOMMENDATIONS Recommending Dismissal of 1 Complaint for Failure to State a Cognizable Claim for Relief, signed by Magistrate Judge Stanley A. Boone on 4/19/17. Objections to F&R Within Thirty Days. (Marrujo, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL ALVAREZ FYKES,

12
13

Plaintiff,
v.

14

RAFAEL ZUNIGA, et al.,

15

Defendants.

16
17

)
)
)
)
)
)
)
)
)
)

Case No.: 1:17-cv-00344-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
COMPLAINT FOR FAILURE TO STATE A
COGNIZABLE CLAIM FOR RELIEF
[ECF No. 1]

Plaintiff Michael Alvarez Fykes is appearing pro se and in forma pauperis in this case.

18

Plaintiff is in the custody of the Federal Bureau of Prisons (“BOP”) and has filed this civil rights

19

action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Plaintiff

20

declined United States Magistrate Judge jurisdiction; therefore, this matter was referred to the

21

undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

22

Currently before the Court is Plaintiff’s complaint, filed March 9, 2017.

23

I.

24

SCREENING REQUIREMENT

25

The Court is required to screen complaints brought by prisoners seeking relief against a

26

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

27

Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

28

“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
1

1
2

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
A complaint must contain “a short and plain statement of the claim showing that the pleader is

3

entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

4

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

5

do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

6

550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

7

participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

8

Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

9

Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

10

liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

11

higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

12

screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

13

the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

14

556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

15

possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

16

consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

17

U.S. at 678; Moss, 572 F.3d at 969.

18

II.

19

COMPLAINT ALLEGATIONS

20

On February 1, 2015, Plaintiff was a passenger in a car in Colorado Springs, Colorado. Police

21

acting upon emergency information that Plaintiff was involved in pimping, conducted a traffic stop

22

and arrested the occupants of the vehicle. Plaintiff was charged in state court with violation of

23

pimping and human trafficking, but the charges were dismissed. However, upon searching the

24

vehicle, police discovered a gun inside a backpack in the trunk of the car which had Plaintiff’s

25

passport in it. Plaintiff was charged federally with possession of a weapon by a prohibited person, 18

26

U.S.C. § 922, and this charge is distinct from the facts for which Plaintiff was stopped. After a jury

27

trial, Plaintiff was convicted of possessing a weapon. However, Plaintiff was never charged or

28

convicted of human trafficking. Therefore, Plaintiff contends the facts relating to the human
2

1

trafficking should not be used to score Plaintiff’s offense severity under Bureau of Prison (BOP)

2

policy. Plaintiff also contends the BOP placed a Public Safety Factor of sex offender on him.

3

III.

4

DISCUSSION

5

Plaintiff’s sole claim is that the Bureau of Prisons (BOP) has failed to follow policy and

6

modify his custody classification, which fails to give rise to a cognizable claim under Bivens v. Six

7

Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

8

“Actions under [42 U.S.C.] § 1983 and those under Bivens are identical save for the

9

replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940

10

F.2d 406, 409 (9th Cir. 1991). Section 1983 provides a cause of action for the violation of Plaintiff’s

11

constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead,

12

580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

13

2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of

14

substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

15

Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v.

16

Connor, 490 U.S. 386, 393-94 (1989)) (internal quotation marks omitted). Habeas relief extends to a

17

person in custody under the authority of the United States. 28 U.S.C. § 2241. Thus, a challenge to the

18

execution of a sentence, e.g., to the manner, location, or conditions of a sentence’s execution is

19

“maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241.” Tucker v.

20

Carlson, 925 F.2d 330, 331 (9th Cir. 1990) (citation omitted).

21

The Due Process Clause protects Plaintiff against the deprivation of liberty without the

22

procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221,

23

125 S.Ct. 2384 (2005). To state a claim, Plaintiff must first identify the interest at stake. Wilkinson,

24

545 U.S. at 221. Liberty interests may arise from the Due Process Clause. Id. However, the Due

25

Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse conditions

26

of confinement. Id. at 221-22 (citations and quotation marks omitted). Liberty interests created by

27

prison regulations are generally limited to freedom from restraint which imposes atypical and

28

significant hardship on the inmate in relation to the ordinary incidents of prison life. Wilkinson, 545
3

1

U.S. at 221(citing Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d

2

716, 718 (9th Cir. 2007).

3

In this instance, there is no support for a finding that Plaintiff has a protected liberty interest in

4

a particular classification score. Myron, 476 F.3d at 718; May v. Baldwin, 109 F.3d 557, 565 (9th Cir.

5

1997). That a higher security institution is more restrictive is not sufficient, in and of itself, to

6

demonstrate that it is a condition which imposes atypical and significant hardship on an inmate in

7

relation to the ordinary incidents of prison life. Id. In fact, Plaintiff’s custody level was reduced and

8

he is now incarcerated at a low security institution. (Compl. at p. 18; see also ECF No. 9.)
Furthermore, Plaintiff challenges the application of the BOP’s policies to his custody

9
10

classification, not the conditions of his place of incarceration. At the time Plaintiff filed this action he

11

was incarcerated in this Court’s jurisdiction; however, Plaintiff is currently incarcerated at the Federal

12

Correctional Institution in Big Spring, Texas. (ECF No. 9.) To the extent Plaintiff is seeking relief by

13

way of habeas corpus, he must file such petition in the custodial court, that is, the court of the district

14

in which he is incarcerated-the United States District Court for the Northern District of Texas. 28

15

U.S.C. § 124. Thus, even if this Court found a cognizable habeas claim, it lacks jurisdiction to review

16

such claim. See, e.g., Hassain v. Johnson, 790 F.2d 1420, 1420 (9th Cir. 1986) (no jurisdiction in

17

California to address petition where inmate incarcerated in Arizona); United States v. Giddings, 740

18

F.2d 770, 771 (9th Cir. 1984) (no jurisdiction in Washington to address petition where inmate

19

incarcerated in Kansas). Although the Court would generally grant Plaintiff leave to amend in light of

20

his pro se status, amendment is futile in this instance because the deficiencies cannot be cured by

21

amendment. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000); Schmier v. U.S. Court of

22

Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[f]utility of

23

amendment” as a proper basis for dismissal without leave to amend); see also Trimble v. City of Santa

24

Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (a civil rights complaint seeking habeas relief should be

25

dismissed without prejudice to filing as a petition for writ of habeas corpus). Accordingly, the instant

26

complaint must be dismissed, without prejudice, for failure to state a cognizable claim for relief.

27

///

28

///
4

1

IV.

2

RECOMMENDATIONS

3

Based on the foregoing, it is HEREBY RECOMMENDED that:

4

1.

The complaint be dismissed for failure to state a cognizable claim for relief; and

5

2.

The Clerk of Court is directed to terminate this action.

6

These Findings and Recommendations will be submitted to the United States District Judge

7

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

8

being served with these Findings and Recommendations, Plaintiff may file written objections with the

9

Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

10

Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

11

result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

12

(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

13
14

IT IS SO ORDERED.

15

Dated:

16

April 19, 2017
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
5