(HC) Perry v. United States Bureau of Prisons et al

Filing 8

ORDER Directing Clerk of Court to Assign a District Judge; FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED and the Clerk of Court be Directed to Provide Petitioner With Blank Forms for Filing a Bivens Action re #1 signed by Magistrate Judge Sheila K. Oberto on 11/16/2020. Referred to Unassigned DJ. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARETH LORENZO PERRY,

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Petitioner,

No. 1:20-cv-01494-SKO (HC)
ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT JUDGE

v.
UNITED STATES BOP CASE
MANAGER CERROTE,
Respondent.

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FINDINGS AND RECOMMENDATION
TO DISMISS PETITION FOR WRIT OF
HABEAS CORPUS
[TWENTY-ONE DAY DEADLINE]

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
On October 21, 2020, Petitioner filed a pleading entitled “Petition for 2241 and 1983

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claim.” (Doc. 1.) The case was opened as a habeas case pursuant to 28 U.S.C. § 2241. Petitioner

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raises a number of complaints concerning his detention and the conditions of confinement. The

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Court finds that Petitioner fails to establish grounds for habeas corpus relief, and that the proper

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avenue for his civil rights complaints is a Bivens action pursuant to Bivens v. Six Unknown

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Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Accordingly, the Court will

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recommend the petition be dismissed, and that Petitioner be provided the proper forms for filing a

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Bivens action.

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DISCUSSION

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In this action, Petitioner raises numerous complaints concerning his detention: 1) He

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claims he was sexually assaulted by staff; 2) He claims staff members retaliated against him by

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placing him in the SHU for threatening staff; 3) He claims staff destroyed his paperwork and

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refused to properly process his administrative appeals concerning an incident in which he was

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attacked by another inmate; 4) He contends that staff are failing to comply with policy deadlines;

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and 5) He claims that prison officials have placed him in the wrong custody level.

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Petitioner is advised that a civil rights action, not a habeas corpus proceeding, is the

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proper mechanism for a prisoner seeking to challenge the conditions of his confinement. See

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Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971);

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Crawford v. Bell, 599 F.2d 890, 891-892 (9th Cir. 1979) (upholding dismissal of petition

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challenging conditions of confinement, the Ninth Circuit noted that “the writ of habeas corpus is

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limited to attacks upon the legality or duration of confinement.”); see, e.g., Blow v. Bureau of

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Prisons, 2007 WL 2403561 at *1 (E.D.Cal. Aug. 20, 2007) (habeas relief under § 2241 does not

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extend to petitioner’s request for access to law library because it concerns conditions of his

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confinement); Boyce v. Ashcroft, 251 F.3d 911, 914 (10th Cir. 2001), vacated on other grounds

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by Boyce v. Ashcroft, 268 F.3d 953 (10th Cir. 2001)(“[P]risoners . . . who raise constitutional

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challenges to other prison decisions-including transfers to administrative segregation, exclusion

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from prison programs, or suspension of privileges, e.g., conditions of confinement, must proceed

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under Section 1983 or Bivens.”). Accordingly, Petitioner is not entitled to habeas corpus relief

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under § 2241 and this action should be dismissed without prejudice to his filing a Bivens civil

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rights action.

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In Nettles v. Grounds, the Ninth Circuit held that a district court has the discretion to

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construe a habeas petition by a state prisoner as a civil rights action under § 1983. Nettles v.

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Grounds, 830 F.3d 922, 936 (9th Cir. 2016). Recharacterization is appropriate only if it is

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“amenable to conversion on its face, meaning that it names the correct defendants and seeks the

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correct relief,” and only after the petitioner is warned of the consequences of conversion and is

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provided an opportunity to withdraw or amend the petition. Id. However, the Ninth Circuit
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ruling in Nettles concerned state prisoners and was not extended to federal prisoners. But even

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assuming Nettles can be extended to federal prisoners, the Court does not find recharacterization

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to be appropriate because the instant petition is not amenable to conversion on its face.

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Accordingly, the Court should not exercise its discretion to recharacterize the action. The Court

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will recommend that the Clerk of Court provide blank forms for filing a Bivens action.

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ORDER

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IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a district judge
to this case.

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RECOMMENDATION

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For the foregoing reasons, the Court RECOMMENDS that the Petition for Writ of Habeas

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Corpus be DISMISSED, and the Clerk of Court be DIRECTED to provide Petitioner with blank

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forms for filing a Bivens action.

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This Findings and Recommendations is submitted to the United States District Court

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Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304

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of the Local Rules of Practice for the United States District Court, Eastern District of California.

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Within twenty-one (21) days after being served with a copy of this Findings and

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Recommendations, Petitioner may file written objections with the Court. Such a document

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

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Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C).

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Petitioner is advised that failure to file objections within the specified time may waive the right to

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appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

November 16, 2020

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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