Graham v. Floyd

Filing 8

OPINION and ORDER DISMISSING 1 Petition for Writ of Habeas Corpus; Declining to Issue a Certificate of Appealability, and Denying Leave to Appeal in forma pauperis. Signed by District Judge Judith E. Levy. (WBar)

Case 5:20-cv-12828-JEL-KGA ECF No. 8, PageID.35 Filed 01/18/23 Page 1 of 7

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Fard Rahman Graham,
Petitioner,
v.

Case No. 20-12828
Honorable Judith E. Levy
United States District Judge

Michele Floyd,
Respondent.
_____________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE
PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING
TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
Petitioner Fard Rahman Graham, who is confined at the Cooper
Street Facility in Jackson, Michigan, filed a pro se application for a writ
of habeas corpus, pursuant to 28 U.S.C. § 2241. Petitioner argues that he
is at risk of contracting the Covid-19 virus while incarcerated. Petitioner
argues that the Michigan Department of Corrections is refusing to
enforce the Governor of Michigan’s Executive Order to prevent the spread
of COVID-19 by requiring adequate social distancing at the prison or to
provide adequate cleaning supplies.

Case 5:20-cv-12828-JEL-KGA ECF No. 8, PageID.36 Filed 01/18/23 Page 2 of 7

For the reasons set forth below, the petition for writ of habeas
corpus is summarily denied without prejudice.
I. BACKGROUND
Petitioner argues that prison officials are violating his Eighth
Amendment rights by failing to enforce the Governor of Michigan’s
Executive Order to prevent the spread of COVID-19 in the Cotton
Correctional Facility. Petitioner states that prison officials have placed
eight men in a cubical setting, in violation of the social distancing rules
put in place at the time by the Executive Order. Petitioner also argues
that the prison is not providing him with adequate cleaning supplies,
again in violation of the Executive Order. Petitioner seeks to be released
from prison because of the great risk of contracting COVID-19 in the
Cotton Correctional Facility.
II. DISCUSSION
Promptly after the filing of a petition for habeas corpus, the Court
must, on its own, undertake a preliminary review of the petition to
determine whether “it plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is not entitled to relief in
the district court.” Rule 4, Rules Governing § 2254 Cases; see also 28
2

Case 5:20-cv-12828-JEL-KGA ECF No. 8, PageID.37 Filed 01/18/23 Page 3 of 7

U.S.C. § 2243. If, after preliminary consideration, the Court determines
that the petitioner is not entitled to relief, the Court must summarily
dismiss the petition. Rule 4; see also Allen v. Perini, 424 F.2d 134, 141
(6th Cir. 1970) (stating that the district court has the duty to “screen out”
petitions that lack merit on their face). A federal district court is
authorized to summarily dismiss a habeas corpus petition if it plainly
appears from the face of the petition and any attached exhibits that the
petitioner is not entitled to federal habeas relief. See McFarland v. Scott,
512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d 434, 436 (6th Cir.
1999). No response to a habeas petition is necessary when the petition is
frivolous, obviously lacks merit, or where the necessary facts can be
determined from the petition itself without consideration of a response
from the State. See Allen, 424 F.2d at 141.
After undertaking the review required by Rule 4, the Court
concludes that the petition must be summarily denied. Where a
prisoner’s habeas petition seeks release from prison arguing that no set
of conditions of confinement would be constitutionally sufficient, the
claim is properly construed as challenging the fact or extent of
confinement, which is a cognizable habeas claim under 28 U.S.C. § 2241.
3

Case 5:20-cv-12828-JEL-KGA ECF No. 8, PageID.38 Filed 01/18/23 Page 4 of 7

See Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) (citing Adams
v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011). On the other hand,
where, as here, conditions of confinement claims seek relief in the form
of improvement of prison conditions or a transfer to another facility, they
are not cognizable under § 2241. Id. (citing Luedtke v. Berkebile, 704 F.3d
465, 466 (6th Cir. 2013)).
Petitioner’s claims are non-cognizable in habeas. Petitioner does
not allege that no set of conditions of confinement would remedy the risk
caused by COVID-19. Rather, Petitioner alleges that the prison is
violating the social distancing rules by placing too many inmates in one
cell. Petitioner also alleges that the prison is providing him insufficient
cleaning supplies to help prevent the spread of COVID-19. Petitioner’s
allegations suggest that the risk of contracting COVID-19 could be
ameliorated if prison officials followed the social distancing rules and
provided adequate cleaning supplies to prisoners. Petitioner does not
allege that no conditions of confinement would be sufficient to prevent
irreparable constitutional remedy at the Cotton Correctional Facility.
Petitioner’s claims are therefore non-cognizable in a habeas petition.
Wilson v. Williams, 961 F.3d at 838.
4

Case 5:20-cv-12828-JEL-KGA ECF No. 8, PageID.39 Filed 01/18/23 Page 5 of 7

Claims which challenge the conditions of confinement should
normally be brought as a civil rights complaint pursuant to 42 U.S.C. §
1983. See Lutz v. Hemingway, 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007).
The proper course for a district court after it determines that the
substance of a state prisoner’s pro se habeas petition is a subject more
appropriately reached under 42 U.S.C. § 1983 is to dismiss the petition
without prejudice to allow petitioner to raise his potential civil rights
claims properly as a § 1983 action. See Martin v. Overton, 391 F. 3d 710,
714 (6th Cir. 2004) (holding that the district court should have dismissed
the habeas petitioner’s § 2241 petition without prejudice to allow
petitioner to raise his potential civil rights claims properly as a § 1983
action rather than to re-characterize it as a § 2254 petition without notice
to petitioner).
III. CONCLUSION
The Court summarily dismisses without prejudice the petition for
writ of habeas corpus.
28 U.S.C. § 2253 governs appeals in habeas corpus proceedings. A
state prisoner who seeks habeas corpus relief under 28 U.S.C. § 2241
must obtain a certificate of appealability to bring an appeal from an order
5

Case 5:20-cv-12828-JEL-KGA ECF No. 8, PageID.40 Filed 01/18/23 Page 6 of 7

denying habeas relief. See Greene v. Tennessee Dep't of Corrections, 265
F. 3d 369, 372 (6th Cir. 2001). “The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. §
2254; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich.
2010).
Section 2253(c)(2) states, in pertinent part: “A certificate of
appealability may issue ... only if the applicant has made a substantial
showing of the denial of a constitutional right.” See also Lyons v. Ohio
Adult Parole Auth., 105 F. 3d 1063, 1073 (6th 1997). Petitioner is not
entitled to a certificate of appealability, because jurists of reason would
not find debatable this Court’s decision that Petitioner’s challenge to his
conditions of confinement should be brought in a civil rights complaint
pursuant to 42 U.S.C. § 1983, rather than as a habeas action. See Rachal
v. Quarterman, 265 F. App’x 371, 377 (5th Cir. 2008). Petitioner should
not be granted leave to proceed in forma pauperis on appeal, as any
appeal would be frivolous. See Fed. R. App. P. 24(a).
Accordingly, the Court summarily denies without prejudice the
petition for a writ of habeas corpus.
6

Case 5:20-cv-12828-JEL-KGA ECF No. 8, PageID.41 Filed 01/18/23 Page 7 of 7

The Court further denies a certificate of appealability and leave to
appeal in forma pauperis.
IT IS SO ORDERED.
Dated: January 18, 2023
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 18, 2023.
s/William Barkholz
WILLIAM BARKHOLZ

7