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)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ROY’LAND RICE, Petitioner, 11 v. 12 13 A. HARRIS, Respondent. 14 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 15 THIRTY (30) DAY OBJECTION DEADLINE 16 17 18 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas 19 corpus 17 pursuant to 28 U.S.C. § 2241. He complains that his institution is denying 20 inmates fresh fruits and vegetables. 21 I. Procedural Grounds for Summary Dismissal 22 The Rules Governing Section 2254 Cases in the United States District Courts are 23 appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Rule 24 Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each 25 petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 26 plainly appears from the petition and any attached exhibits that the petitioner is not 27 28 entitled to relief in the district court[.]” Rule 4. 1 The Court may dismiss a petition for writ of habeas corpus either on its own 2 motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer 3 to the petition has been filed. Advisory Committee Notes to Rule 8, 1976 Adoption; see 4 Herbst v. Cook, 260 F.3d 1039, 1042–43 (9th Cir. 2001). A petition for habeas corpus 5 should not be dismissed without leave to amend unless it appears that no tenable claim 6 for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th 7 Cir. 1971). 8 II. Discussion 9 Writ of habeas corpus relief extends to a person in custody under the authority of 10 the United States. See 28 U.S.C. § 2241. A federal prisoner who wishes to challenge the 11 validity or constitutionality of his conviction must bring a petition for writ of habeas corpus 12 under 28 U.S.C. § 2255. A petitioner challenging the manner, location, or conditions of 13 that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. 14 § 2241. See, e.g., United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984); Brown v. 15 United States, 610 F.2d 672, 677 (9th Cir. 1990). Writ of habeas corpus relief is available 16 under § 2241 if a federal prisoner can show he is “in custody in violation of the 17 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). However, 18 where a Petitioner seeks to challenge the conditions of his confinement, his claims are 19 cognizable in a civil rights action rather than a habeas corpus action. In the federal 20 context, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 21 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), provides petitioners with a remedy for 22 violation of civil rights by federal actors. C.f., Badea v. Cox, 931 F.2d 573, 574 (9th 23 Cir.1991) (challenges to conditions of confinement by state prisoners should be 24 presented in a 42 U.S.C. § 1983 civil rights action rather than a habeas corpus petition). 25 In this case, Petitioner's complaints involve the conditions of his confinement, not 26 the execution of his sentence. He seeks injunctive relief requiring the institution to cease 27 serving certain foods and to begin serving others. He also seeks monetary damages. 28 2 1 These claims are not cognizable in habeas corpus and should be dismissed. It does not 2 appear that any tenable claim for relief could be pleaded, even if leave to amend were 3 granted. Jarvis, 440 F.2d at 14. Should Petitioner wish to pursue his claims, Petitioner 4 must do so by way of a civil rights complaint pursuant to Bivens. 5 III. Conversion to Civil Rights Action 6 In an appropriate case a habeas petition may be construed as a civil rights 7 complaint. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418 8 (1971). Although the Court may construe a habeas petition as a civil rights action, it is 9 not required to do so. Since the time when the Wilwording case was decided there have 10 been significant changes in the law. For instance, the filing fee for a habeas petition is 11 five dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For 12 civil rights cases, however, the fee is now $350 and under the Prisoner Litigation Reform 13 Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of 14 deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A 15 prisoner who might be willing to file a habeas petition for which he or she would not have 16 to pay a filing fee might feel otherwise about a civil rights complaint for which the $350 17 fee would be deducted from income to his or her prisoner account. Also, a civil rights 18 complaint which is dismissed as malicious, frivolous, or for failure to state a claim would 19 count as a "strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases. 20 In view of these potential pitfalls for Petitioner if the petition were construed as a 21 civil rights complaint, the Court will recommend the case be dismissed without prejudice 22 to Petitioner presenting the claims in a civil rights complaint pursuant to Bivens v. Six 23 Unknown Named Agents, 403 U.S. 388 (1971), rather than a habeas petition. Any such 24 complaint will be assigned a separate civil number. 25 /// 26 /// 27 /// 28 3 1 IV. Recommendation 2 Based on the foregoing, it is HEREBY RECOMMENDED that the petition be 3 dismissed without prejudice to Petitioner's right to file a civil rights action pursuant to 4 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 5 The findings and recommendation are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 7 thirty (30) days after being served with the findings and recommendations, Petitioner 8 may file written objections with the Court and serve a copy on all parties. Such a 9 document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendations.” Petitioner is advised that failure to file objections within the specified 11 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 12 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 15 IT IS SO ORDERED. Dated: September 12, 2017 /s/ 16 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 4

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?