Isom v. Matevousian

Filing 7

ORDER Directing Clerk's Office to Assign a District Judge to This Matter - CASE ASSIGNED to Chief Judge Lawrence J. O'Neill and Magistrate Judge Michael J. Seng. New Case No. 1:18-cv-00149 LJO MJS (HC); FINDINGS and RECOMMEN DATION to Dismiss Petition for Lack of Jurisdiction; Clerk to Send Petitioner Blank Civil Rights Complaint Form and Blank Application to Proceed in Forma Pauperis by a Prisoner, signed by Magistrate Judge Michael J. Seng on 3/12/2018: 14-Day Deadline. (Attachments: # 1 Complaint & IFP Application - blank forms)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENNY L. ISOM,
Petitioner,

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v.
ANDRE MATEVOUSIAN, Warden,
Respondent.

Case No. 1:18-cv-00149-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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FOURTEEN (14) DAY OBJECTION
DEADLINE
CLERK TO SEND PETITIONER BLANK
CIVIL RIGHTS COMPLAINT FORM AND
BLANK APPLICATION TO PROCEED IN
FORMA PAUPERIS BY A PRISONER

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
corpus 17 pursuant to 28 U.S.C. § 2241. He complains that he has been denied access
to the law library and access to the courts.
It appearing that the petition does not state a claim within the Court’s habeas
jurisdiction, the undersigned ordered Petitioner to show cause why the petition should
not be dismissed. (ECF No. 5.) Petitioner responded by stating that he inadvertently

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submitted a § 2241 petition when he should have submitted a civil rights complaint form.

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(ECF No. 6.)

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In light of Petitioner’s response indicating his intent to file a civil rights action, the

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Court will recommend dismissal of the instant petition, without prejudice to Petitioner

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bringing his claims in a separately-filed civil rights action.

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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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Here, a petition for writ of habeas corpus brought pursuant to § 2241 is not the

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proper vehicle for the claims Petitioner presents. Petitioner challenges the denial of his

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access to the law library and the courts. These claims do not implicate the fact or

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duration of his confinement. Thus, Petitioner has not stated a cognizable habeas claim

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pursuant to § 2241. These claims should be dismissed. It does not appear that any

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tenable claim for relief could be pleaded, even if leave to amend were granted. Jarvis,

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440 F.2d at 14. Should Petitioner wish to pursue his claims, Petitioner must do so by

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way of a civil rights complaint pursuant to Bivens. Petitioner acknowledges as much.

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(ECF No. 6.)

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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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Finally, in a civil rights action, the plaintiff may name as defendants only those

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individuals who personally participated in the deprivation of his rights, and must

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adequately link each defendant to the alleged constitutional violation. Simmons v.

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Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton,

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588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). Here, Petitioner names only the warden, who has no readily apparent

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involvement in Petitioner’s claims.

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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.

Conclusion and Recommendation

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Because Respondent has not appeared or consented to Magistrate Judge

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jurisdiction, the Clerk of Court is directed to assign this matter to a district judge.

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Additionally, the Clerk is directed to send Petitioner a blank civil rights complaint form

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and a blank application to proceed in forma pauperis by a prisoner.

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Additionally, it is HEREBY RECOMMENDED that the petition be dismissed

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without prejudice to Petitioner's right to file a separate 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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fourteen (14) 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:

March 12, 2018

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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