Roy'land Rice v. Harris et al

Filing 5

ORDER Directing Clerk's Office to Assign a District Judge to this Matter; FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Lack of Jurisdiction, signed by Magistrate Judge Michael J. Seng on 9/12/17. Referred to Judge Drozd. Objections to F&R Due Within Thirty Days. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Michael J. Seng. The New Case Number is: 1:17-cv-01180-DAD-MJS. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROY’LAND RICE,
Petitioner,

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v.

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A. HARRIS,
Respondent.

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Case No. 1:17-cv-01180-MJS (HC)
ORDER DIRECTING CLERK’S OFFICE TO
ASSIGN A DISTRICT JUDGE TO THIS
MATTER
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR LACK OF
JURISDICTION

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THIRTY (30) DAY OBJECTION DEADLINE
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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
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corpus 17 pursuant to 28 U.S.C. § 2241. He complains that his institution is denying
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inmates fresh fruits and vegetables.
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I.

Procedural Grounds for Summary Dismissal

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The Rules Governing Section 2254 Cases in the United States District Courts are
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appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Rule
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Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each
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petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it

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plainly appears from the petition and any attached exhibits that the petitioner is not
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entitled to relief in the district court[.]” Rule 4.

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The Court may dismiss a petition for writ of habeas corpus either on its own

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motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer

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to the petition has been filed. Advisory Committee Notes to Rule 8, 1976 Adoption; see

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Herbst v. Cook, 260 F.3d 1039, 1042–43 (9th Cir. 2001). A petition for habeas corpus

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should not be dismissed without leave to amend unless it appears that no tenable claim

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for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th

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Cir. 1971).

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II.

Discussion

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Writ of habeas corpus relief extends to a person in custody under the authority of

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the United States. See 28 U.S.C. § 2241. A federal prisoner who wishes to challenge the

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validity or constitutionality of his conviction must bring a petition for writ of habeas corpus

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under 28 U.S.C. § 2255. A petitioner challenging the manner, location, or conditions of

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that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C.

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§ 2241. See, e.g., United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984); Brown v.

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United States, 610 F.2d 672, 677 (9th Cir. 1990). Writ of habeas corpus relief is available

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under § 2241 if a federal prisoner can show he is “in custody in violation of the

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Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). However,

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where a Petitioner seeks to challenge the conditions of his confinement, his claims are

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cognizable in a civil rights action rather than a habeas corpus action. In the federal

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context, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

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388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), provides petitioners with a remedy for

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violation of civil rights by federal actors. C.f., Badea v. Cox, 931 F.2d 573, 574 (9th

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Cir.1991) (challenges to conditions of confinement by state prisoners should be

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presented in a 42 U.S.C. § 1983 civil rights action rather than a habeas corpus petition).

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In this case, Petitioner's complaints involve the conditions of his confinement, not

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the execution of his sentence. He seeks injunctive relief requiring the institution to cease

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serving certain foods and to begin serving others. He also seeks monetary damages.

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These claims are not cognizable in habeas corpus and should be dismissed. It does not

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appear that any tenable claim for relief could be pleaded, even if leave to amend were

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granted. Jarvis, 440 F.2d at 14. Should Petitioner wish to pursue his claims, Petitioner

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must do so by way of a civil rights complaint pursuant to Bivens.

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III.

Conversion to Civil Rights Action

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In an appropriate case a habeas petition may be construed as a civil rights

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complaint. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418

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(1971). Although the Court may construe a habeas petition as a civil rights action, it is

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not required to do so. Since the time when the Wilwording case was decided there have

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been significant changes in the law. For instance, the filing fee for a habeas petition is

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five dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For

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civil rights cases, however, the fee is now $350 and under the Prisoner Litigation Reform

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Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of

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deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A

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prisoner who might be willing to file a habeas petition for which he or she would not have

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to pay a filing fee might feel otherwise about a civil rights complaint for which the $350

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fee would be deducted from income to his or her prisoner account. Also, a civil rights

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complaint which is dismissed as malicious, frivolous, or for failure to state a claim would

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count as a "strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases.

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In view of these potential pitfalls for Petitioner if the petition were construed as a

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civil rights complaint, the Court will recommend the case be dismissed without prejudice

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to Petitioner presenting the claims in a civil rights complaint pursuant to Bivens v. Six

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Unknown Named Agents, 403 U.S. 388 (1971), rather than a habeas petition. Any such

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complaint will be assigned a separate civil number.

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IV.

Recommendation

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Based on the foregoing, it is HEREBY RECOMMENDED that the petition be

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dismissed without prejudice to Petitioner's right to file a civil rights action pursuant to

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Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

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The findings and recommendation are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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thirty (30) days after being served with the findings and recommendations, Petitioner

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may file written objections with the Court and serve a copy on all parties. Such a

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

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Recommendations.” Petitioner is advised that failure to file objections within the specified

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time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

September 12, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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