1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES ROCKETT, Case No. 1:20-cv-00945-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT PETITION BE DISMISSED FOR 13 v. LACK OF JURISDICTION AND THAT MOTIONS FOR INJUNCTIVE RELIEF AND 14 LEPE, et. al., DISCOVERY BE DENIED 15 Respondents. OBJECTIONS DUE IN THIRTY DAYS 16 ECF No. 1 17 ORDER DENYING MOTION FOR DISCOVERY, DIRECTING CLERK OF 18 COURT TO SEND PETITIONER A PRISONER CIVIL RIGHTS COMPLAINT 19 FORM AND TO ASSIGN CASE TO A DISTRICT JUDGE 20 ECF No. 1 21 22 Petitioner James Rockett, a federal prisoner without counsel, petitions for a writ of habeas 23 corpus under 28 U.S.C. § 2241. ECF No. 1. This matter is before the court for preliminary 24 review. Under Rule 4 of the Rules Governing Section 2254 Cases, we must examine the habeas 25 corpus petition and order a response to the petition unless it “plainly appears” that the petitioner is 26 not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. 27 Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). At this early stage, Rule 4 gives “courts an 28 active role in summarily disposing of facially defective habeas petitions.” Ross v. Williams, 896 1 F.3d 958, 968 (9th Cir. 2018) (citation omitted). We recommend that the petition be dismissed 2 for lack of jurisdiction. Petitioner might, however, be able to seek relief by filing a civil rights 3 complaint under Bivens. 4 I. Discussion 5 a. Jurisdiction 6 “Challenges to the validity of any confinement or to particulars affecting its duration are 7 the province of habeas corpus,” whereas requests for relief turning on circumstances of 8 confinement should be presented in a civil rights action. See Muhammad v. Close, 540 U.S. 749, 9 750 (2004). The appropriate avenue for a federal prisoner’s claim that relates to the conditions of 10 his confinement is a civil rights action under Bivens v. Six Unknown Named Narcotics Agents, 11 403 U.S. 388 (1971)). See Greenhill v. Lappin, 376 F. App’x 757, 757-58 (9th Cir. 2010). In this 12 district, claims concerning various prison conditions brought under § 2241 have been found to lie 13 beyond our court’s subject matter jurisdiction and have been dismissed without prejudice to filing 14 a Bivens civil rights action. See, e.g., Burnette v. Smith, No. CIV S-08-2178-DAD-P, 2009 U.S. 15 Dist. LEXIS 20219 at *1 (E.D. Cal. Mar. 13, 2009) (petitioner’s confinement in segregated unit 16 for security purposes and prison’s refusal to transfer petitioner should be raised as Bivens action, 17 not as a § 2241 habeas action). 18 Here, petitioner does not challenge the validity or duration of his confinement. Rather, he 19 challenges actions taken by the Bureau of Prisons (“BOP”) in response to his alleged violation of 20 prison rules. See generally ECF No. 1. Specifically, he challenges BOP’s cell search procedures 21 and his placement in and the conditions of the special housing unit where he was housed while 22 awaiting a disciplinary hearing. Because petitioner’s claims turn on the conditions of his 23 confinement, this court has no subject matter jurisdiction over the petition under § 2241. 24 Accordingly, we recommend that the petition be dismissed without prejudice. 25 b. Conversion 26 We next consider whether to convert the petition into a Bivens complaint. “If the 27 complaint is amenable to conversion on its face, meaning that it names the correct defendants and 28 seeks the correct relief, the court may recharacterize the petition so long as it warns the pro se 1 litigant of the consequences of the conversion and provides an opportunity for the litigant to 2 withdraw or amend his or her complaint.” Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016). 3 A Bivens action must allege illegal or inappropriate conduct on the part of a federal official or 4 agent that violates a clearly established constitutional right.1 See Serra v. Lappin, 600 F.3d 1191, 5 1200 (9th Cir. 2010); Baiser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 6 (9th Cir. 2003). A claim of a “merely negligent act by a federal official” does not “state a 7 colorable claim under Bivens.” O’Neal v. Eu, 866 F.2d 314, 314 (9th Cir. 1988). Moreover, a 8 Bivens claim is only available against officers in their individual capacities. Morgan v. U.S., 323 9 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996). There is 10 no respondeat superior liability—i.e., liability of a supervisor for the acts of a supervisee. See 11 Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). Each defendant is only liable for his or 12 her own misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009). 13 We decline to convert the petition into a Bivens complaint for two reasons. First, the 14 complaint is not amenable to conversion on its face. Petitioner’s allegations about the prison 15 conditions are too conclusory to state a Bivens claim. And petitioner has named only the warden 16 and the director of the Department of Justice as the respondents; petitioner has not named the 17 people who directly committed the affirmative acts or omissions that violated his rights. Second, 18 conversion may be unfair to petitioner. The filing fee for a habeas corpus petition is $5—and if 19 leave to proceed in forma pauperis is granted, the fee is forgiven. For civil rights cases, however, 20 the filing fee is $350 plus a $50 administrative fee. Under the Prisoner Litigation Reform Act, 21 petitioner would be required to pay the $350 filing fee, even if granted in forma pauperis status, 22 by way of deductions from his trust account. See 28 U.S.C. § 1915(b)(1). If we were to convert 23
24 1 Although petitioner has the option of seeking damages via a Bivens claim, a Bivens claim is not necessarily viable. The U.S. Supreme Court “has approved of an implied damages remedy under 25 the Constitution itself” under Bivens in only three contexts: (1) Fourth Amendment unreasonable search and seizure in Bivens, 403 U.S. at 396-97; (2) Fifth Amendment gender discrimination in 26 Davis v. Passman, 442 U.S. 228, 248-49 (1979); and (3) Eighth Amendment deliberate 27 indifference to serious medical needs in Carlson v. Green, 446 U.S. 14, 19 (1980). See Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). 28 1 this action to a civil rights complaint, petitioner would face the larger filing and administrative 2 fees—and with this in mind he might prefer not to file. 3 While we decline to convert the petition, petitioner remains free to file a Bivens 4 complaint. A complaint must contain a short and plain statement that the plaintiff is entitled to 5 relief, Fed. R. Civ. P.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES ROCKETT, Case No. 1:20-cv-00945-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT PETITION BE DISMISSED FOR 13 v. LACK OF JURISDICTION AND THAT MOTIONS FOR INJUNCTIVE RELIEF AND 14 LEPE, et. al., DISCOVERY BE DENIED 15 Respondents. OBJECTIONS DUE IN THIRTY DAYS 16 ECF No. 1 17 ORDER DENYING MOTION FOR DISCOVERY, DIRECTING CLERK OF 18 COURT TO SEND PETITIONER A PRISONER CIVIL RIGHTS COMPLAINT 19 FORM AND TO ASSIGN CASE TO A DISTRICT JUDGE 20 ECF No. 1 21 22 Petitioner James Rockett, a federal prisoner without counsel, petitions for a writ of habeas 23 corpus under 28 U.S.C. § 2241. ECF No. 1. This matter is before the court for preliminary 24 review. Under Rule 4 of the Rules Governing Section 2254 Cases, we must examine the habeas 25 corpus petition and order a response to the petition unless it “plainly appears” that the petitioner is 26 not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. 27 Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). At this early stage, Rule 4 gives “courts an 28 active role in summarily disposing of facially defective habeas petitions.” Ross v. Williams, 896 1 F.3d 958, 968 (9th Cir. 2018) (citation omitted). We recommend that the petition be dismissed 2 for lack of jurisdiction. Petitioner might, however, be able to seek relief by filing a civil rights 3 complaint under Bivens. 4 I. Discussion 5 a. Jurisdiction 6 “Challenges to the validity of any confinement or to particulars affecting its duration are 7 the province of habeas corpus,” whereas requests for relief turning on circumstances of 8 confinement should be presented in a civil rights action. See Muhammad v. Close, 540 U.S. 749, 9 750 (2004). The appropriate avenue for a federal prisoner’s claim that relates to the conditions of 10 his confinement is a civil rights action under Bivens v. Six Unknown Named Narcotics Agents, 11 403 U.S. 388 (1971)). See Greenhill v. Lappin, 376 F. App’x 757, 757-58 (9th Cir. 2010). In this 12 district, claims concerning various prison conditions brought under § 2241 have been found to lie 13 beyond our court’s subject matter jurisdiction and have been dismissed without prejudice to filing 14 a Bivens civil rights action. See, e.g., Burnette v. Smith, No. CIV S-08-2178-DAD-P, 2009 U.S. 15 Dist. LEXIS 20219 at *1 (E.D. Cal. Mar. 13, 2009) (petitioner’s confinement in segregated unit 16 for security purposes and prison’s refusal to transfer petitioner should be raised as Bivens action, 17 not as a § 2241 habeas action). 18 Here, petitioner does not challenge the validity or duration of his confinement. Rather, he 19 challenges actions taken by the Bureau of Prisons (“BOP”) in response to his alleged violation of 20 prison rules. See generally ECF No. 1. Specifically, he challenges BOP’s cell search procedures 21 and his placement in and the conditions of the special housing unit where he was housed while 22 awaiting a disciplinary hearing. Because petitioner’s claims turn on the conditions of his 23 confinement, this court has no subject matter jurisdiction over the petition under § 2241. 24 Accordingly, we recommend that the petition be dismissed without prejudice. 25 b. Conversion 26 We next consider whether to convert the petition into a Bivens complaint. “If the 27 complaint is amenable to conversion on its face, meaning that it names the correct defendants and 28 seeks the correct relief, the court may recharacterize the petition so long as it warns the pro se 1 litigant of the consequences of the conversion and provides an opportunity for the litigant to 2 withdraw or amend his or her complaint.” Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016). 3 A Bivens action must allege illegal or inappropriate conduct on the part of a federal official or 4 agent that violates a clearly established constitutional right.1 See Serra v. Lappin, 600 F.3d 1191, 5 1200 (9th Cir. 2010); Baiser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 6 (9th Cir. 2003). A claim of a “merely negligent act by a federal official” does not “state a 7 colorable claim under Bivens.” O’Neal v. Eu, 866 F.2d 314, 314 (9th Cir. 1988). Moreover, a 8 Bivens claim is only available against officers in their individual capacities. Morgan v. U.S., 323 9 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996). There is 10 no respondeat superior liability—i.e., liability of a supervisor for the acts of a supervisee. See 11 Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). Each defendant is only liable for his or 12 her own misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009). 13 We decline to convert the petition into a Bivens complaint for two reasons. First, the 14 complaint is not amenable to conversion on its face. Petitioner’s allegations about the prison 15 conditions are too conclusory to state a Bivens claim. And petitioner has named only the warden 16 and the director of the Department of Justice as the respondents; petitioner has not named the 17 people who directly committed the affirmative acts or omissions that violated his rights. Second, 18 conversion may be unfair to petitioner. The filing fee for a habeas corpus petition is $5—and if 19 leave to proceed in forma pauperis is granted, the fee is forgiven. For civil rights cases, however, 20 the filing fee is $350 plus a $50 administrative fee. Under the Prisoner Litigation Reform Act, 21 petitioner would be required to pay the $350 filing fee, even if granted in forma pauperis status, 22 by way of deductions from his trust account. See 28 U.S.C. § 1915(b)(1). If we were to convert 23
24 1 Although petitioner has the option of seeking damages via a Bivens claim, a Bivens claim is not necessarily viable. The U.S. Supreme Court “has approved of an implied damages remedy under 25 the Constitution itself” under Bivens in only three contexts: (1) Fourth Amendment unreasonable search and seizure in Bivens, 403 U.S. at 396-97; (2) Fifth Amendment gender discrimination in 26 Davis v. Passman, 442 U.S. 228, 248-49 (1979); and (3) Eighth Amendment deliberate 27 indifference to serious medical needs in Carlson v. Green, 446 U.S. 14, 19 (1980). See Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). 28 1 this action to a civil rights complaint, petitioner would face the larger filing and administrative 2 fees—and with this in mind he might prefer not to file. 3 While we decline to convert the petition, petitioner remains free to file a Bivens 4 complaint. A complaint must contain a short and plain statement that the plaintiff is entitled to 5 relief, Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible 6 on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does 7 not require detailed allegations, but legal conclusions do not suffice. See Iqbal, 556 at 678. If the 8 allegations “do not permit the court to infer more than the mere possibility of misconduct,” the 9 complaint states no claim. Id. at 679. The complaint need not identify “a precise legal theory.” 10 Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016). Instead, what 11 the plaintiff must state is a “claim”—a set of “allegations that give rise to an enforceable right to 12 relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc) 13 (citations omitted). The complaint must state what actions each named defendant took that 14 deprived the plaintiff of constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. 15 Williams, 297 F.3d 930, 934 (9th Cir. 2002). Because petitioner may wish to seek this form of 16 relief, we will direct the clerk’s office to send petitioner a blank prisoner civil rights complaint 17 form. 18 c. Motions for Injunctive Relief 19 Petitioner also seeks various forms of injunctive relief. Specifically, he moves for: (1) a 20 restraining order against BOP to prevent sanctions from being levied against him during the 21 pendency of this case; (2) a stay of any future sanctions that may be imposed by the prison in the 22 event that petitioner’s alleged disciplinary infraction is adjudicated before this court has reached a 23 final disposition in this case; (3) a reversal or dismissal of any judgments made by the prison 24 against petitioner; (3) immediate removal from the special housing unit and ultimate removal 25 from his prison during the pendency of this case; and (4) an order directing the Department of 26 Justice to review and make changes to its inmate cell search policies. ECF No. 1 at 1-2, 12. 27 A federal district court may issue injunctive relief only if the court has both personal 28 jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros., 1 Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party 2 officially, and is required to take action in that capacity, only upon service of summons or other 3 authority-asserting measure stating the time within which the party served must appear to 4 defend”). Because this court has no subject matter jurisdiction over the petition under § 2241, we 5 cannot order injunctive relief. 6 d. Motion for Discovery 7 Petitioner seeks to subpoena various prison staff members and seeks discovery of certain 8 video footage. ECF No. 1 at 13. A habeas petitioner, “unlike the usual civil litigant in federal 9 court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 10 899, 904 (1997). Under Rule 6(a) of the Rules Governing Section 2254 Cases, a federal district 11 court may authorize discovery in a habeas proceeding for good cause. See id. at 904-05. Good 12 cause exists if “specific allegations before the court show reason to believe that the petitioner 13 may, if the facts are fully developed,” demonstrate entitlement to habeas relief. Smith v. 14 Mahoney, 611 F.3d 978, 996-97 (9th Cir. 2010). Because petitioner has failed to state any 15 cognizable claims for habeas relief under § 2241, we deny his motion for discovery. 16 II. Certificate of Appealability 17 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 18 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 19 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 20 district court to issue or deny a certificate of appealability when entering a final order adverse to a 21 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 22 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 23 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 24 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 25 his constitutional claims or that jurists could conclude the issues presented are adequate to 26 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 27 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the 28 wOASe £4 OYE INN INR VR MMU OI ee OY VY
1 | denial of a constitutional right. Thus, we recommend that the court not issue a certificate of 2 | appealability. 3 III. Findings and Recommendations 4 We recommend that the court dismiss the petition, deny petitioner’s motions for injunctive 5 | relief, and decline to issue a certificate of appealability. Under 28 U.S.C. § 636(b)(1)(B) and 6 | Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 7 | California, we submit the findings and recommendations to the U.S. District Court judge 8 || presiding over the case. Within thirty days of the service of the findings and recommendations, 9 | any party may file written objections to the findings and recommendations. That document must 10 | be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 11 district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 12 IV. Order 13 1. Petitioner’s motion for discovery, ECF No. 1 at 12, is denied. 14 2. The clerk’s office is directed to send petitioner a prisoner civil rights complaint 15 form. 16 3. The clerk of court is directed to assign this case to a district judge for the purpose 17 of reviewing these findings and recommendations. 18 19 IT IS SO ORDERED. 20 ( Caan Dated: _ July 14, 2020 21 UNIT#D STATES MAGISTRATE JUDGE 22 23 | No. 206. 24 25 26 27 28