Robert Gene Rand v. B. Birkholz

• Court: District Court, C.D. California
• Decided: June 7, 2022
• Docket: 2:22-cv-02146
• Status: Unknown

Opinion

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT GENE RAND, Case No. 2:22-cv-02146-AB (AFM)

12 Petitioner, ORDER SUMMARILY DISMISSING 13 v. PETITION FOR WRIT OF HABEAS 14 B. BIRKHOLZ, Warden, CORPUS 15 Respondent. 16 Petitioner is a federal inmate serving a sentence imposed by the United States 17 District Court for the District of Nevada. He is currently incarcerated at the Federal 18 Correctional Institution in Lompoc, California. (ECF 1 at 1-2.) On March 25, 2022, 19 Petitioner filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 20 The petition does not purport to challenge Petitioner’s conviction or sentence. 21 Instead, it challenges prison conditions. (ECF 1 at 2, 5.) Specifically, Petitioner raises 22 the following claims for relief: (1) he received inadequate medical care in violation 23 of the Eighth Amendment because, among other things, an injury to his right foot 24 was not properly diagnosed or treated; doctors at the prison have failed to properly 25 read his abnormal EKGs; he has been given simple generic eye drops for glaucoma; 26 he is in pain because he needs a left hip replacement; as a result of being provided 27 “tardy” insulin for two years, his diabetes is under poor control, resulting in 28 Case 2:22-cv-02146-AB-AFM Document 5 Filed 06/07/22 Page 2 of 4 Page ID #:198

1 neuropathy and loss of anal sphincter tone, as well as other health issues; (2) he was 2 denied a phone call with his attorney and was not permitted to bring papers with him 3 to a disciplinary hearing; (3) he has been denied his rights under the Americans with 4 Disabilities Act because he has been housed in a dorm with non-ADA compliant 5 restrooms or showers and because he was assigned an upper bunk; (4) he was denied 6 his right to free speech because he was retaliated against after making a complaint; 7 and (5) the BOP has arbitrarily denied him release under the CARES Act. (ECF 1 at 8 3-4, 6.) The petition includes numerous pages of detailed allegations relating to 9 Petitioner’s medical conditions and care, as well as the overall conditions in Lompoc 10 prison which he believes violate his federally protected rights. (See ECF 1 at 11-114.) 11 For the following reasons, the petition is summarily dismissed. See Rule 1(b) 12 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District 13 Courts, 28 U.S.C. foll. § 2254. 14 DISCUSSION 15 Habeas corpus “is the exclusive remedy ... for the prisoner who seeks 16 ‘immediate or speedier release’ from confinement.” Skinner v. Switzer, 562 U.S. 521, 17 525 (2011) (citation omitted). A challenge to the fact or duration of confinement 18 which, if successful, would result in immediate or speedier release falls within the 19 “core” of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 487-489 (1973); Nettles 20 v. Grounds, 830 F.3d 922, 927-929 (9th Cir. 2016) (en banc). A challenge to the 21 conditions of confinement does not fall within the “core” of habeas corpus; instead, 22 such challenge must be raised in a civil rights action. Nettles, 830 F.3d at 931-934. 23 As set forth above, Petitioner’s claims challenge the allegedly unlawful 24 conditions of his confinement. As such, they may not be brought by way of a habeas 25 corpus action. Instead, Petitioner may attempt to assert such claims through a civil 26 rights action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau 27 of Narcotics, 403 U.S. 388 (1971). 28 While a federal court has discretion to construe a habeas corpus petition as a

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1 civil rights complaint, Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (per 2 curiam), the Court declines to do so in this case. See Nettles, 830 F.3d at 936 (district 3 court may construe a petition for habeas corpus as a civil rights action after notifying 4 and obtaining informed consent from the prisoner). To begin with, the petition does 5 not appear to name “the correct defendants.” The petition names the Warden as 6 Respondent, rather than the prison officials of whose alleged actions or inaction 7 Petitioner complains – i.e., the doctors and nurses who treated Petitioner at Lompoc. 8 See Glaus v. Anderson, 408 F.3d 382, 389 (7th Cir. 2005) (federal inmate’s habeas 9 petition challenging deficient medical care was not amenable to conversion to a civil 10 rights action because inmate had named the warden as the respondent). 11 In addition, because a habeas corpus action and a prisoner civil rights suit 12 differ in a variety of respects – including filing fees, the means of collecting them, 13 and restrictions on future filings – recharacterization may be “disadvantageous to the 14 prisoner compared to a dismissal without prejudice of his petition for habeas corpus.” 15 Nettles, 830 F.3d at 935-936 (quoting Robinson v. Sherrod, 631 F.3d 839, 841 (7th 16 Cir. 2011)). Accordingly, conversion of the present petition into a Bivens complaint 17 would be inappropriate. See Nunez v. Pliler, 2020 WL 5880461, at *2 (C.D. Cal. 18 Oct. 1, 2020) (conversion of habeas corpus petition into a Bivens complaint 19 inappropriate where petition did not name prison officials and considering significant 20 difference in procedural requirements between habeas corpus and civil rights 21 actions); Jorgenson v. Spearman, 2016 WL 2996942, at *1 (C.D. Cal. May 22, 2016) 22 (declining to convert petition into a civil rights complaint “in light of the considerable 23 procedural and substantive differences between habeas corpus and civil rights 24 matters”). 25 Finally, Petitioner’s attempt to raise a claim under the CARES Act fails for a 26 separate reason: Petitioner’s claim under the CARES Act involves the BOP’s 27 discretion and is outside the scope of a Section 2241 petition. See, e.g., United States 28 v. Medel, 2021 WL 1200182, at *1 n.1 (C.D. Cal. Mar. 30, 2021); Cruz v. Jenkins,

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1 || 2020 WL 6822884, at *3 (N.D. Cal. Nov. 20, 2020).! 2 For these reasons, IT IS ORDERED that this action be dismissed without 3 || prejudice. 5 | DATED: June 07, 2022 . ' ANDRE BIROTTE JR. 8 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 || | Petitioner previously filed a habeas corpus petition in this Court raising numerous challenges to his continued incarceration, including a similar claim under the CARES Act. Case No. 2:21-cv- 27 || 00720-AB(AFM). That action was dismissed without prejudice. Among other things, the Court 28 that it lacked authority to grant Petitioner relief under the CARES Act. (See ECF 15 at