1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID JAH, SR., Case No. 5:23-cv-01748-CAS-PD
12 Petitioner, ORDER TO SHOW CAUSE 13 v. WHY THE PETITION 14 SHOULD NOT BE DISMISSED WARDEN, FCI VICTORVILLE, 15 MED. 1, 16 Respondent. 17
18 On August 25, 2023, David Jah, Sr. (“Petitioner”), a federal prisoner 19 proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in 20 Federal Custody under 28 U.S.C. § 2241 (“Petition”) and an “Affidavit in 21 Support of 28 U.S.C. § 2241” (“Affidavit”). [Dkt. Nos. 1, 2.] 22 On September 22, 2023, Petitioner filed a “Rule 60(b) Motion for Relief 23 from a Final Judgment.” [Dkt. No. 6.] 24 25 I. Background and Petitioner’s Claims 26 Petitioner is presently housed at the Federal Correctional Institution at 27 Victorville-Medium I (“FCI Victorville”), which is within the Central District 28 of California. [Dkt. No. 1.] He is serving a sentence of 18-years for conspiracy 1 to commit arson that was imposed in 2021 in the United States District Court 2 for the Northern District of California in the matter of United States v. David 3 Jah, 3:19-cr-00026-WHA-1.1 4 Petitioner asserts claims for deliberate indifference to his serious 5 medical needs under the Eighth Amendment and violation of his equal 6 protection and due process rights under the Fifth and Fourteenth 7 Amendments. [Dkt. No. 1 at 3-4, 6-7.] Petitioner seeks injunctive relief and 8 requests that the Court order the Bureau of Prisons Director to: 9 (1) temporarily release him to a re-entry center, halfway house, or home 10 confinement; (2) allow for Petitioner’s conditional release to include safe 11 drinking water and medical care as needed; and (3) assure that all of 12 Petitioner’s legal work is kept with him to prevent misplacement. [Id. at 8.] 13 Petitioner alleges that FCI Victorville is on a site known to be 14 contaminated by various toxins that are present in the ground water, 15 aquifers, and supply wells. [Id. at 2.] In February 2023, the Director, Warden, and all staff were made aware of the City of Adelanto’s water report 16 notifying the public that the total trihalomethanes (“TTHMs”) level present in 17 Adelanto’s water was 189 times above the Environmental Working Group 18 health guidelines. [Id.] Petitioner alleges that accounts of debilitating 19 medical problems “abound among those who lived and worked at George Air 20 Force Base [which was on the site prior to the prison being built],” and also 21 those incarcerated at the prison, including “organ failures, such as vision loss 22 … with knowledge that exposure to the harsh desert sunlight can cause 23 cataracts, macular degeneration, ocular cancer, … and various medical 24 problems.” [Id.] 25
26 1 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial notice of the federal dockets and filings available through the PACER system. See 27 also Harris v. County of Orange, 682 F. 3d 1126, 1131-32 (9th Cir. 2012) (noting that 28 a court may take judicial notice of court records). 1 Petitioner alleges that he requested a voucher or two cases of bottled 2 water from his Unit Manager Mr. Villegas, or that alternatively, a filter be 3 installed in his cell to purify the water. [Id.] According to Petitioner, the 4 Bureau of Prisons Director has knowledge of the water problems and “has not 5 provided adequate drinking water in bottles except for purchase at currently 6 $1.30 which amounts to $62.40 a week” for the amount of water health 7 professionals recommend for Petitioner’s body mass. [Id.] In addition, the 8 Director has not provided filters at the water stations in the prison. [Id.] 9 Petitioner suffers from blurry vision and macular edema and informed 10 the medical department of his conditions in March 2023. [Dkt. Nos. 1 at 4; 2 11 at 1.] He was promised an appointment with an ophthalmologist and 12 gastroenterologist approximately six months prior to filing his action. [Dkt. 13 No. 1 at 4.] Every two weeks, Petitioner has made a sick call visit to inquire 14 when his doctors’ appointments will be scheduled and to update the medical 15 staff of his increasing symptoms. [Id.] The medical staff informed him there was no medical doctor employed at the prison that could see him, but an 16 outside appointment would occur “sooner [rather] than later” with no exact 17 time frame provided. [Id.] 18 Petitioner alleges that in February 2023, unknown persons searched his 19 cell and confiscated his personal property which included the water report 20 that described the water contamination. [Dkt. No. 2 at 1.] In March 2023, 21 Petitioner alleges that he requested a BP-8 grievance form, along with the 22 names of the unknown persons who searched his cell and confiscated his 23 property. He never received the BP-8 or his property, or access to a water 24 filter or bottled water without cost. [Id.] 25 Petitioner further alleges that in April 2023, while he was talking to his 26 family about his medical problems, Mr. Villegas without warning, used his 27 hands to hang up Petitioner’s phone call and demanded that he go to the 28 1 back-office area in the hallway where the counselors are located. [Id.] 2 Petitioner felt threated. [Id.] Petitioner asked for a BP-9 so he could file a 3 grievance against Mr. Villegas and was told that if he is given a BP-9 he will 4 miss any court deadlines due to being placed in the “SHU and [his] mail will 5 be misplaced.” [Id.] Because of Mr. Villegas’ past actions, Petitioner took his 6 threats seriously and did not ask for a BP-9. [Id. at 2.] 7 In May 2023, Petitioner’s legal mail from the United States Supreme 8 Court was opened and copied outside his presence. [Id.] In June 2023, 9 Petitioner was examined by medical and was “told blood was noticed” and 10 that he could not be prescribed bottled water. [Id.] He claims between July 11 and August 2023, he submitted several sick call slips. [Id.] 12 According to public records, Petitioner’s projected release date is April 20, 13 2034. See Fed. R. Evid. 201; Federal Bureau of Prisons Inmate Locator, 14 https://www.bop.gov/inmateloc (accessed September 28, 2023). 15 II. DISCUSSION 16 A. Duty to Screen the Petition 17 A habeas petition brought under 28 U.S.C. § 2241 is subject to the same 18 screening requirements that apply to habeas petitions brought under 28 19 U.S.C. § 2254. See Rules Governing Section 2254 Cases in the United States 20 District Courts (“Habeas Rules”), Rule 1(b) (providing that district courts may 21 apply the Habeas Rules to habeas petitions that are not brought under 28 22 U.S.C. § 2254). Accordingly, a district court “must promptly examine” the 23 petition and, “[i]f it plainly appears from the petition and any attached 24 exhibits that the petitioner is not entitled to relief,” the “judge must dismiss 25 the petition.” Habeas Rule 4; Mayle v. Felix, 545 U.S. 644, 656 (2005); Lane v. 26 Feather, 584 F. App’x 843, 843 (9th Cir. 2014) (affirming district court’s 27 application of Habeas Rule 4 to dismiss Section 2241 petition).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID JAH, SR., Case No. 5:23-cv-01748-CAS-PD
12 Petitioner, ORDER TO SHOW CAUSE 13 v. WHY THE PETITION 14 SHOULD NOT BE DISMISSED WARDEN, FCI VICTORVILLE, 15 MED. 1, 16 Respondent. 17
18 On August 25, 2023, David Jah, Sr. (“Petitioner”), a federal prisoner 19 proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in 20 Federal Custody under 28 U.S.C. § 2241 (“Petition”) and an “Affidavit in 21 Support of 28 U.S.C. § 2241” (“Affidavit”). [Dkt. Nos. 1, 2.] 22 On September 22, 2023, Petitioner filed a “Rule 60(b) Motion for Relief 23 from a Final Judgment.” [Dkt. No. 6.] 24 25 I. Background and Petitioner’s Claims 26 Petitioner is presently housed at the Federal Correctional Institution at 27 Victorville-Medium I (“FCI Victorville”), which is within the Central District 28 of California. [Dkt. No. 1.] He is serving a sentence of 18-years for conspiracy 1 to commit arson that was imposed in 2021 in the United States District Court 2 for the Northern District of California in the matter of United States v. David 3 Jah, 3:19-cr-00026-WHA-1.1 4 Petitioner asserts claims for deliberate indifference to his serious 5 medical needs under the Eighth Amendment and violation of his equal 6 protection and due process rights under the Fifth and Fourteenth 7 Amendments. [Dkt. No. 1 at 3-4, 6-7.] Petitioner seeks injunctive relief and 8 requests that the Court order the Bureau of Prisons Director to: 9 (1) temporarily release him to a re-entry center, halfway house, or home 10 confinement; (2) allow for Petitioner’s conditional release to include safe 11 drinking water and medical care as needed; and (3) assure that all of 12 Petitioner’s legal work is kept with him to prevent misplacement. [Id. at 8.] 13 Petitioner alleges that FCI Victorville is on a site known to be 14 contaminated by various toxins that are present in the ground water, 15 aquifers, and supply wells. [Id. at 2.] In February 2023, the Director, Warden, and all staff were made aware of the City of Adelanto’s water report 16 notifying the public that the total trihalomethanes (“TTHMs”) level present in 17 Adelanto’s water was 189 times above the Environmental Working Group 18 health guidelines. [Id.] Petitioner alleges that accounts of debilitating 19 medical problems “abound among those who lived and worked at George Air 20 Force Base [which was on the site prior to the prison being built],” and also 21 those incarcerated at the prison, including “organ failures, such as vision loss 22 … with knowledge that exposure to the harsh desert sunlight can cause 23 cataracts, macular degeneration, ocular cancer, … and various medical 24 problems.” [Id.] 25
26 1 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial notice of the federal dockets and filings available through the PACER system. See 27 also Harris v. County of Orange, 682 F. 3d 1126, 1131-32 (9th Cir. 2012) (noting that 28 a court may take judicial notice of court records). 1 Petitioner alleges that he requested a voucher or two cases of bottled 2 water from his Unit Manager Mr. Villegas, or that alternatively, a filter be 3 installed in his cell to purify the water. [Id.] According to Petitioner, the 4 Bureau of Prisons Director has knowledge of the water problems and “has not 5 provided adequate drinking water in bottles except for purchase at currently 6 $1.30 which amounts to $62.40 a week” for the amount of water health 7 professionals recommend for Petitioner’s body mass. [Id.] In addition, the 8 Director has not provided filters at the water stations in the prison. [Id.] 9 Petitioner suffers from blurry vision and macular edema and informed 10 the medical department of his conditions in March 2023. [Dkt. Nos. 1 at 4; 2 11 at 1.] He was promised an appointment with an ophthalmologist and 12 gastroenterologist approximately six months prior to filing his action. [Dkt. 13 No. 1 at 4.] Every two weeks, Petitioner has made a sick call visit to inquire 14 when his doctors’ appointments will be scheduled and to update the medical 15 staff of his increasing symptoms. [Id.] The medical staff informed him there was no medical doctor employed at the prison that could see him, but an 16 outside appointment would occur “sooner [rather] than later” with no exact 17 time frame provided. [Id.] 18 Petitioner alleges that in February 2023, unknown persons searched his 19 cell and confiscated his personal property which included the water report 20 that described the water contamination. [Dkt. No. 2 at 1.] In March 2023, 21 Petitioner alleges that he requested a BP-8 grievance form, along with the 22 names of the unknown persons who searched his cell and confiscated his 23 property. He never received the BP-8 or his property, or access to a water 24 filter or bottled water without cost. [Id.] 25 Petitioner further alleges that in April 2023, while he was talking to his 26 family about his medical problems, Mr. Villegas without warning, used his 27 hands to hang up Petitioner’s phone call and demanded that he go to the 28 1 back-office area in the hallway where the counselors are located. [Id.] 2 Petitioner felt threated. [Id.] Petitioner asked for a BP-9 so he could file a 3 grievance against Mr. Villegas and was told that if he is given a BP-9 he will 4 miss any court deadlines due to being placed in the “SHU and [his] mail will 5 be misplaced.” [Id.] Because of Mr. Villegas’ past actions, Petitioner took his 6 threats seriously and did not ask for a BP-9. [Id. at 2.] 7 In May 2023, Petitioner’s legal mail from the United States Supreme 8 Court was opened and copied outside his presence. [Id.] In June 2023, 9 Petitioner was examined by medical and was “told blood was noticed” and 10 that he could not be prescribed bottled water. [Id.] He claims between July 11 and August 2023, he submitted several sick call slips. [Id.] 12 According to public records, Petitioner’s projected release date is April 20, 13 2034. See Fed. R. Evid. 201; Federal Bureau of Prisons Inmate Locator, 14 https://www.bop.gov/inmateloc (accessed September 28, 2023). 15 II. DISCUSSION 16 A. Duty to Screen the Petition 17 A habeas petition brought under 28 U.S.C. § 2241 is subject to the same 18 screening requirements that apply to habeas petitions brought under 28 19 U.S.C. § 2254. See Rules Governing Section 2254 Cases in the United States 20 District Courts (“Habeas Rules”), Rule 1(b) (providing that district courts may 21 apply the Habeas Rules to habeas petitions that are not brought under 28 22 U.S.C. § 2254). Accordingly, a district court “must promptly examine” the 23 petition and, “[i]f it plainly appears from the petition and any attached 24 exhibits that the petitioner is not entitled to relief,” the “judge must dismiss 25 the petition.” Habeas Rule 4; Mayle v. Felix, 545 U.S. 644, 656 (2005); Lane v. 26 Feather, 584 F. App’x 843, 843 (9th Cir. 2014) (affirming district court’s 27 application of Habeas Rule 4 to dismiss Section 2241 petition). The Court has 28 1 reviewed the Petition under Rule 4 of the Habeas Rules and finds the Petition 2 is subject to dismissal for the reasons explained below. 3 B. Petitioner’s Claims Are Not Cognizable on Habeas Review 4 “Federal law opens two main avenues to relief on complaints related to 5 imprisonment”—a petition for habeas corpus and a civil rights complaint. 6 Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). Relief in the 7 form of a writ of habeas corpus may be granted to a person in custody under 8 the authority of the United States if the petitioner can show that he is “in 9 custody in violation of the Constitution or laws or treaties of the United 10 States.” 28 U.S.C. § 2241(c)(1), (3). In general, habeas proceedings provide a 11 forum in which to challenge the “legality or duration” of a prisoner’s 12 confinement. Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (as 13 amended); see also Nettles v. Grounds, 830 F.3d 922, 927, 934 (9th Cir. 2016) 14 (en banc) (habeas is “the exclusive vehicle” for claims that fall within “the core 15 of habeas corpus,” that is, claims challenging “the fact or duration of the conviction or sentence”). By contrast, a civil rights action is the “proper 16 remedy” for a petitioner asserting “a constitutional challenge to the conditions 17 of his prison life, but not to the fact or length of his custody.” Preiser v. 18 Rodriguez, 411 U.S. 475, 499 (1973); Nelson v. Campbell, 541 U.S. 637, 643 19 (2004) (“[C]onstitutional claims that merely challenge the conditions of a 20 prisoner’s confinement, whether the inmate seeks monetary or injunctive 21 relief, fall outside of [the] core” of habeas corpus and instead, should be 22 brought as a civil rights action “in the first instance”); Greenhill v. Lappin, 23 376 F. App’x 757 (9th Cir. 2010) (appropriate remedy for claim related to the 24 conditions of confinement lies in a civil rights action under Bivens v. Six 25 Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)). 26 Thus, if success on a habeas Petitioner’s claim would not necessarily lead to 27 his immediate or earlier release from confinement, the claim does not fall 28 1 within “the core of habeas corpus” and thus, must be pursued, if at all, in a 2 civil rights action. See Nettles, 830 F.3d at 935; see also Ramirez v. Galaza, 3 334 F.3d 850, 859 (9th Cir. 2003). 4 Here, Petitioner does not contest his conviction or sentence. Instead, he 5 complains that he was not provided with bottled water or a filter, that he did 6 not receive adequate medical care, that medical staff were deliberately 7 indifferent to his serious medical needs, and that he received threats of 8 retaliation because he asked for a grievance form. [Dkt. Nos. 1 at 2-4, 6-7; 2 9 at 1-2.] These are classic conditions of confinement claims that do not 10 implicate the fact or duration of Petitioner’s confinement. See Nettles, 830 11 F.3d at 933 (explaining that “prisoners may not challenge mere conditions of 12 confinement in habeas corpus”). 13 Although Petitioner requests relief in the form of temporary release to 14 home confinement, a halfway house, or a re-entry center [Dkt. No. 1 at 8], 15 which is within the ambit of a writ of habeas corpus, Petitioner’s claims challenge the conditions of his confinement and are properly the subject of a 16 civil rights complaint, despite the relief he seeks. Shook v. Apker, 472 F. 17 App’x 702, 702-03 (9th Cir. 2012) (finding claims on conditions of confinement 18 were properly brought under Bivens despite the relief sought); see, e.g., Allah 19 v. Warden, No. CV 17-05201 AG (RAO), 2017 U.S. Dist. LEXIS 145293, at *4- 20 5 (C.D. Cal. Aug. 31, 2017) (concluding that Bivens was the appropriate 21 vehicle for a petitioner’s challenges to conditions of confinement, “even if 22 petitioner had requested release from custody or some other appropriate 23 habeas relief”); Bolden v. Ponce, No. CV 20-3870-JFW (MAA), 2020 WL 24 2097751, at *2 (C.D. Cal. May 1, 2020) (holding that the petitioner’s challenge 25 to the conditions of his confinement during the COVID-19 pandemic should 26 have been asserted in a civil rights complaint and not a habeas action, despite 27 his request for immediate release). Because Petitioner admittedly does not 28 1 challenge his conviction or sentence, Section 2241 is not the proper vehicle for 2 Petitioner’s claims.2 3 C. The Court Declines to Construe the Petition as a Civil Rights Complaint 4
5 In some circumstances, a district court may convert an improperly filed 6 habeas petition into a civil rights complaint. See Nettles, 830 F.3d at 935-36. 7 The Court, however, declines to do so in this case. Prisoner civil rights actions 8 are subject to different requirements (and higher filing fees) than are federal 9 habeas proceedings. Indeed, the congressionally mandated filing fee for a 10 prisoner civil rights complaint is currently $350.00 in contrast to the $5.00 11 filing fee for habeas petitions. See 28 U.S.C. § 1914(a). And, while a civil 12 rights action may proceed despite the prisoner’s inability to prepay the entire 13 $350.00 if he is granted leave to proceed in forma pauperis (“IFP”) under 28 14 U.S.C. § 1915(a), he must still agree to pay the entire filing fee in 15 installments, even if his complaint is ultimately dismissed. See 28 U.S.C. § 16 1915(b)(1)-(2). 17 18 19 2 To the extent that the Petition can be construed as a disguised motion for compassionate release, it is not properly before this Court. Under 18 U.S.C. 20 § 3582(c)(1)(A), all motions for sentencing reductions, including motions for compassionate release, must be filed in the sentencing court. See United States v. 21 Ono, 72 F.3d 101, 102 (9th Cir. 1995) (a motion under Section 3582(c) “is 22 undoubtedly a step in the criminal case” that “requires the [sentencing] court to reexamine the original sentence” (citation omitted)); see also United States v. Raia, 23 954 F.3d 594, 595 (3d Cir. 2020) (“Section 3582’s text requires those motions to be addressed to the sentencing court, a point several Circuits have noted . . . .”); Bolden, 24 2020 WL 2097751, at *2 (finding district court lacks authority to grant release 25 under § 3582(c)(1)(A) based on conditions caused by COVID-19 pandemic because petition was not filed in sentencing court); Mitchell v. Engleman, No. CV 21-06488- 26 JWH (JEM), 2021 WL 4641945, at *1 (C.D. Cal. Sept. 9, 2021) (same); Thody v. Swain, No. CV 19-09641-PA (DFM), 2019 WL 7842560, at *2 (C.D. Cal. Nov. 26, 27 2019) (“[B]y its plain language, 18 U.S.C. § 3582(c)(1)(A) requires Petitioner to move 28 for reduction in the sentencing court.”). 1 Here, Petitioner has not paid the fee to file a civil rights action. In 2 addition, the Court would be obligated to screen the converted Petition under 3 28 U.S.C. §§ 1915(e)(2) and 1915A to determine whether the action is 4 frivolous or malicious; or fails to state a claim on which relief might be 5 granted; or seeks monetary relief against a defendant who is immune from 6 such relief. The Court also notes that if the converted Petition was ultimately 7 dismissed on the grounds that it is frivolous, malicious, or fails to state a 8 claim, that dismissal would count as a “strike” against Petitioner for purposes 9 of 28 U.S.C. § 1915(g), which provides that a prisoner who has three “strikes” 10 may not bring an action or appeal without prepayment of the full filing fee 11 “unless the prisoner is under imminent danger of serious physical injury.” 12 Accordingly, if Petitioner seeks to pursue any civil rights claim, he must do so 13 by filing a separate civil rights complaint in a new action. 14 D. The Rule 60(b) Motion 15 Petitioner has also filed a Rule 60(b) Motion alleging a claim of actual innocence relating to his conviction and sentence in the United States District 16 Court for the Northern District of California. [Dkt. No. 6.] Petitioner’s Rule 17 60(b) Motion raises issues and claims unrelated to the instant Section 2241 18 Petition and Affidavit. [See Dkt. Nos. 1, 2.] To the extent that Petitioner 19 seeks relief under Rule 60(b), his Motion is not properly brought before this 20 Court. 21 22 III. ORDER 23 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 24 is therefore ORDERED TO SHOW CAUSE why this action should not be 25 dismissed without prejudice by filing a written response by no later than 26 November 9, 2023, which sets forth any valid legal and/or factual reasons 27 why the Petition should not be dismissed. 28 1 If, after review of this Order, Petitioner should decide not to further 2 pursue this action at this time, Petitioner may voluntarily dismiss the action 3 by signing and returning the attached Notice of Dismissal under Federal Rule 4 of Civil Procedure 41(a). 5 Petitioner is cautioned that the failure to timely respond to this Order 6 will result in this action being dismissed for the reasons explained above, for 7 failure to prosecute, and for failure to comply with a Court order. See Fed. R. 8 Civ. P. 41(b). 9 DATED: October 13, 2023 10 PATRICIA DONAHUE PATRICIA DONAHUE 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28