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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 WILLIAM DIXON ADELMAN, Case No. 2:21-cv-04336-JAK (GJS) 12 Petitioner ORDER DISMISSING PETITION 13 v. WITHOUT PREJUDICE
14 WARDEN OR ACTING WARDEN, LOMPOC-FCI, 15 Respondent. 16
17 18 Petitioner is a federal prisoner currently incarcerated within this District at 19 FCI-Lompoc. The Clerk’s Office received a putative 28 U.S.C. § 2241 petition 20 from him on May 24, 2021, which thereafter was filed and assigned to the 21 undersigned (Dkt. 1, “Petition”). The Court has screened the Petition1 and evaluated 22 Petitioner’s allegations and claims. Based on this review, the Court concludes that 23 1 Habeas petitions brought pursuant to Section 2241 may be subjected to the same screening 24 requirements that apply to habeas petitions brought pursuant to 28 U.S.C. § 2254. See Rules 1(b) 25 and 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (a district court may “apply any or all of these rules” to any habeas petition, and 26 mandating that a district court dismiss a petition without ordering a responsive pleading where “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to 27 relief”); see also Bostic v. Carlson, 884 F.2d 1267, 1269-70 (9th Cir. 1989) (affirming district 28 court’s dismissal of a Section 2241 petition under Habeas Rules 1(b) and 4); Local Rule 72-3.2 (authorizing magistrate judge to prepare for district judge proposed order for summary dismissal 1 summary dismissal of this action, without prejudice, is required, for the reasons 2 stated below. 3 4 BACKGROUND 5 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes 6 judicial notice of the federal dockets and filings available through the PACER 7 system. These records show that in Case No. 3:17-cr-03580-JLS in the United 8 States District Court for the Southern District of California (the “Sentencing 9 Court”), Petitioner was charged with violations of 18 U.S.C. §§ 2423(b)/2428(b) 10 (travel with the intent to engage in illicit sexual conduct). Following a June 22, 11 2018 plea, Petitioner was convicted of one count of violating 18 U.S.C. §§ 12 2423(b)/2428(b). In February 2019, Petitioner received a sentence of 90 months, to 13 be followed by ten years of supervised release. 14 Petitioner did not appeal this conviction or sentence. On November 17, 2020, 15 Petitioner filed a motion for compassionate release under 18 U.S.C. § 16 3582(c)(1)(A)(i) in the Sentencing Court. Following briefing, on December 18, 17 2020, United States District Judge Janis L. Sammartino denied the motion, finding 18 that even if Petitioner’s asserted medical conditions (diabetes, sleep apnea, and 19 obesity) could be found to be extraordinary and compelling grounds for relief, they 20 did not outweigh the risk of danger to the community in light of the “dangerous and 21 disturbing” nature of Petitioner’s conduct surrounding his offense. [See Docket for 22 3:17-cr-03580-JLS, No. 75.] 23 Petitioner has moved for reconsideration of the December 18, 2020 Order, 24 and that motion was pending when the docket for Petitioner’s criminal case was last 25 checked. In its January 29, 2021 opposition to the reconsideration motion, the 26 Government presented evidence that Petitioner had refused to be vaccinated, and in 27 his February 8, 2021 reply, Petitioner denied that he had refused to be vaccinated 28 and said that he would be vaccinated when that opportunity was next offered to him. 1 [See Docket for 3:17-cr-03580-JLS, Nos. 79-81.] In a subsequent filing, the 2 Government presented evidence that Petitioner once again had refused to be 3 vaccinated (on March 3, 2021), and in a response, Petitioner claimed that he had 4 refused to be vaccinated by medical personnel at his institution on this second 5 occasion, because an inmate at FCI -Lompoc had tested positive for Clostridium 6 difficile. [See Docket for 3:17-cr-03580-JLS, Nos. 83-84.] 7 According to the Federal Bureau of Prisons (“BOP”) website, Petitioner’s 8 projected release date is February 23, 2024. 9 10 PETITIONER’S CLAIMS 11 The Petition alleges the following five grounds for relief: 12 Ground One seeks relief based on an alleged “[u]ncertain, possible worsening 13 COVID situation.” The Petition alleges that: COVID cases and hospitalizations are 14 rising in many areas; the CDC predicts new waves of infection; new variants are 15 emerging frequently; it is unknown how long the COVID vaccines will provide 16 protection; and California has relaxed its “alert status,” which creates a danger of a 17 “massive resurgence” of COVID infections. [Petition at 3.] Petitioner does not 18 proffer any support for these assertions, which for the most part seem to be contrary 19 to the CDC’s pronouncements of late and to media reports regarding falling rates of 20 infections, hospitalizations, and deaths in much of the United States, especially in 21 California. 22 Ground Two seeks relief based on the alleged “[c]ontinuing negligence or 23 incompetence by BOP vis a vis COVID & inmate health care.” The Petition 24 vaguely refers to unidentified documents attached as exhibits to unidentified inmate 25 motions, and does not allege what information these documents contain. As to 26 himself, Petitioner alleges that: he has made four requests for a CPAP machine that 27 have been denied despite his sleep apnea; his diabetes is “out of control”; the BOP 28 and the DOJ “lied” when they said he had refused to be vaccinated twice and 1 violated HIPPA in doing so; and with respect to the March 3, 2021 incident, he 2 asked to have his vaccination postposed due to the presence of Clostridium difficile 3 at FCI-Lompoc. [Petition at 3.] Thus, by his second claim, Petitioner complains 4 about what he believes to be deficient medical care provided to him, as well as 5 vaguely alludes to unspecified issues regarding how his institution is handling 6 COVID matters. 7 Ground Three is premised on Petitioner’s allegedly “[w]orsening personal 8 health.” Petitioner refers to his Ground Two allegations and alleges that he also is 9 obese and possibly has high blood pressure. He complains that he remains 10 unvaccinated in an environment in which inmates do not have to wear masks in 11 dorms except during inspections and inmate counts. [Petition at 4.] 12 Ground Four rests on Petitioner’s assertions that: on an unspecified date, an 13 Assistant Warden told 19 inmates who are designated as “high risk” with respect to 14 COVID (including him) that they had been approved for home confinement. 15 However, they were not released, apparently because someone higher up in the BOP 16 denied such release. [Petition at 4.] 17 Ground Five sets forth various complaints Petitioner has with respect to his 18 sentence2 and statements made by the Government’s attorneys in his Pre-Sentence 19 Report and otherwise regarding the pornography discovered on Petitioner’s devices 20 and his conduct with respect to minors. Petitioner asserts that he cannot be properly 21 rehabilitated while confined in prison. [Petition at 6 (Addendum).] 22 23 24 2 Petitioner also asserts that the sentencing judge “mandated S.O. program not offered by the prison,” but a review of the judgment entered by District Judge Sammartino shows that this is not 25 accurate. Rather, Judge Sammartino merely recommended placement in a Residential Drug Abuse Program (“RDAP”) and that Petitioner be incarcerated in a facility close to the Central District of 26 California to accommodate “RDAP, SOTP, and family visits.” [See Docket for 3:17-cr-03580- 27 JLS, No. 58 at 2.] These types of recommendations are neither a part of a defendant’s sentence nor binding on the BOP. See 18 U.S.C. § 3621(b); United States v. Ceballos, 671 F.3d 852, 855- 28 56 (9th Cir. 2011) (“[t]he Bureau of Prisons has the statutory authority to choose the locations 1 DISCUSSION 2 3 I. The Court Will Not Consider Ground Five. 4 Federal courts have an independent obligation to examine their own 5 jurisdiction and may not entertain an action in which jurisdiction is lacking. 6 Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). For federal prisoners 7 wishing to challenge matters related to their sentences, there are two statutory bases 8 for federal district court jurisdiction: 28 U.S.C. § 2241 (“Section 2241”); and 28 9 U.S.C. § 2255 (“Section 2255”). 10 A Section 2241 habeas petition may be filed by a federal prisoner to attack 11 the “execution of his sentence,” but not to attack its validity. White v. Lambert, 370 12 F.3d 1002, 1009 (9th Cir. 2004); Hernandez, 204 F.3d at 864. A motion under 13 Section 2255 generally is the exclusive mechanism – outside of a direct appeal – by 14 which a federal prisoner may challenge the validity or legality of his sentence. See 15 Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012); Harrison v. Ollison, 519 F.3d 16 952, 955 (9th Cir. 2008). 17 Through Ground Five, Petitioner attacks the validity of the sentence he 18 received, in part, and complains that the benefits that adhere to successful 19 completion of an RDAP are not available to him. Petitioner asserts that he cannot 20 be rehabilitated if he is incarcerated in a prison and speculates that even if he were 21 to complete an RDAP program successfully, the BOP nonetheless would refuse to 22 allow a year off his sentence and home confinement given the nature of his offense. 23 Petitioner also appears to contend that the sentence he received – 90 months 24 incarceration – resulted from representations by the prosecutor that Petitioner had 25 solicited illicit relations with children under 12 and had many images of illegal 26 pornography on his devices, which Petitioner denies. 27 For these reasons, Ground Five can be viewed, in part, as an attack on the 28 validity of Petitioner’s sentence, i.e., that it resulted from allegedly untrue 1 statements by the prosecutor. To the extent that Petitioner wishes to challenge the 2 sentence he received, he cannot do so in this District, because it was not imposed 3 here. Rather, he should have appealed or pursued any such relief through a Section 4 2255 motion, or some other motion filed in the Southern District. To the extent that 5 Ground Five reflects Petitioner’s belief that he is entitled to compassionate release, 6 the Southern District, again, is the only proper venue for such a request. See, e.g., 7 Macias v. Bradley, No. CV 20-714-RGK, 2020 WL 6681250, at *2 (C.D. Cal. Nov. 8 10, 2020) (dismissing request by petitioner seeking compassionate release when he 9 had been sentenced in the Eastern District of California, where he had such a motion 10 pending); Sweeney v. Hererra, No. CV 20-0427-CJC, 2020 WL 4980062, at *3 11 (C.D. Cal. June 8, 2020) (only the sentencing court or the BOP may consider a 12 request for compassionate release, not the district of incarceration). Section 2241 is 13 not an available remedy for Petitioner’s Ground Five attack on his sentence. 14 Ground Five also can be construed, in part, as an attack on the execution of 15 Petitioner’s sentence, based on Petitioner’s contention that the BOP will not afford 16 him participation in, and the benefits of, an RDAP, and thereby will not afford him 17 the opportunity to be moved outside the prison to transitional housing and to receive 18 time off his sentence. Even as so construed, the Court declines to consider the claim 19 because it is not cognizable. 20 Under 18 U.S.C. § 3621(b), the BOP is required to make “available 21 appropriate substance abuse treatment for each prisoner the [BOP] determines has a 22 treatable condition of substance abuse or addiction.” See 28 C.F.R. § 550.53l; BOP 23 Program Statement 5330.11 (“PS 5330.11”), Ch. 2. “RDAP is an intensive drug 24 treatment program for federal inmates with documented substance abuse problems.” 25 Reeb v. Thomas, 636 F.3d 1224, 1225 (9th Cir. 2011). In addition to receiving 26 treatment, a federal inmate assigned to an RDAP who successfully completes the 27 program can receive up to a one-year reduction in his sentence, pursuant to 18 28 U.S.C. § 3621(e)(2)(B). 1 In Reeb, the Ninth Circuit found that: pursuant to 18 U.S.C. § 3625, the 2 judicial review provisions of the Administrative Procedures Act did not apply to any 3 determinations, decisions, or orders made pursuant to 18 U.S.C, §§ 3621-3625; and 4 allowing prisoners to bring Section 2241 habeas petitions to challenge BOP 5 discretionary decisions made under Section 3621 would be inconsistent with 18 6 U.S.C. § 3625. Reeb, 636 F.3d at 1227. The Ninth Circuit concluded that Reeb’s 7 claims that he was entitled to participate in an RDAP and to be afforded a 12-month 8 reduction in his sentence “are matters properly left to the BOP’s discretion,” and 9 that his available remedy was the BOP’s administrative grievance process, not 10 Section 2241. Id. “[A]ny substantive decision by the BOP to admit a particular 11 prisoner into RDAP, or to grant or deny a sentence reduction for completion of the 12 program, is not reviewable by the district court,” and the “BOP’s substantive 13 decisions to remove particular inmates from the RDAP program are likewise not 14 subject to judicial review.” Id. The Ninth Circuit held that “federal courts lack 15 jurisdiction to review the BOP’s individualized RDAP determinations made 16 pursuant to 18 U.S.C. § 3621.” Id. at 1228. 17 For the foregoing reasons, Ground Five is not cognizable on habeas review to 18 the extent that Petitioner is complaining about his inability to obtain release from 19 prison based on RDAP participation. Further, no evidence has been presented that 20 Petitioner has attempted to exercise his administrative remedies with respect to this 21 claim. For federal prisoners such as Petitioner, the BOP has in place an 22 administrative remedy procedure. It can be used by inmates to seek formal review of 23 their complaints regarding any aspect of imprisonment, including the execution of 24 their sentence. They must do so by submitting a specified series of administrative 25 remedy requests and forms upward through the “final administrative appeal” that 26 renders a claim administratively exhausted. See 28 C.F.R. §§ 542.10, 542.13- 27 542.15; Nigro v. Sullivan, 40 F.3d 990, 992 (9th Cir. 1994). Although Section 2241 28 does not contain an exhaustion requirement, and consequently exhaustion is not a 1 jurisdictional prerequisite, for prudential reasons, federal courts require Section 2 2241 petitioners to exhaust their administrative remedies prior to seeking habeas 3 relief. Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012); Brown v. Rison, 895 4 F.2d 533, 535 (9th Cir. 1990); see also Singh v. Napolitano, 649 F.3d 899, 900 (9th 5 Cir. 2011); and Laing v. Ashcroft, 370 F.3d 994, 997-98 (9th Cir. 2004). Requiring 6 a petitioner to exhaust his administrative remedies aids “judicial review by allowing 7 the appropriate development of a factual record in an expert forum,” conserves “the 8 court’s time because of the possibility that the relief applied for may be granted at 9 the administrative level,” and allows “the administrative agency an opportunity to 10 correct errors occurring in the course of administrative proceedings.” Ruviwat v. 11 Smith, 701 F.2d 844, 845 (9th Cir. 1983) (per curiam). Dismissal is appropriate 12 when a federal prisoner has not exhausted the administrative remedies made 13 available by the BOP. Martinez v. Roberts, 804 F.3d 570, 571 (9th Cir. 1986) (per 14 curiam). 15 Even if Petitioner’s RDAP-related complaints were cognizable under Section 16 2241, these are precisely the types of matters that should be considered by the BOP 17 in the first instance, rather than raised for the first time in a federal court. If these 18 complaints are raised through the administrative review process, the BOP then will 19 be afforded the chance to provide relief or to explain why none will be provided. In 20 either instance, it would be prudent to require that Petitioner raise his fifth claim 21 with the BOP and exhaust it before seeking federal habeas relief. 22 Accordingly, for these reasons, Ground Five will be dismissed without 23 prejudice. 24 25 II. Grounds One Through Four Are Not Cognizable In Habeas Review. 26 Ground One of the Petition rests on a few vague and unsupported allegations 27 regarding Petitioner’s speculation that the COVID pandemic is “possibly 28 worsening.” The asserted factual premise for this Ground is very thin , but in any 1 event, the claim does not actually state any basis for habeas relief. The Court 2 assumes that Ground One is proffered as background for Grounds Two through 3 Four, in which Petitioner complains that: he is not receiving adequate medical care 4 for his sleep apnea and diabetes; he has not been vaccinated despite being exposed 5 to inmates who do not wear masks; and he was supposed to be released to home 6 confinement due to his “high risk” status COVID-wise but was not. 7 As noted earlier, a Section 2241 habeas corpus petition is a vehicle for a 8 federal prisoner’s challenge to the execution of his sentence. Hernandez, 204 F.3d 9 at 864. Challenges to a prisoner’s conditions of confinement, however, must be 10 brought through a civil rights action, rather than through a habeas corpus petition. 11 See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); see also Hill v. McDonough, 12 547 U.S. 573, 579 (2006) (“[a]n inmate’s challenge to the circumstances of his 13 confinement” must be brought through a civil rights action); Muhammad v. Close, 14 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to 15 particulars affecting its duration are the province of habeas corpus . . . ; requests for 16 relief turning on circumstances of confinement may be presented in a § 1983 17 action.”) (cit. om.). A civil rights action is the “proper remedy” for a prisoner “who 18 is making a constitutional challenge to the conditions of his prison life, but not to the 19 fact or length of his custody.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973); see 20 also Ramirez v. Galaza, 344 F.3d 850, 859 (9th Cir. 2003) (habeas jurisdiction is 21 lacking, and a civil rights action instead is appropriate, “where a successful 22 challenge to a prison condition will not necessarily shorten the prisoner’s 23 sentence”). “[C]onstitutional claims that merely challenge the conditions of a 24 prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall 25 outside of that core [of habeas relief]” and, instead, should be brought as a civil 26 rights claim “in the first instance.” Nelson v. Campbell, 541 U.S. 637, 643 (2004). 27 The allegations of Grounds One through Four of the Petition present 28 complaints about the conditions of Petitioner’s confinement. Through his 1 allegations, Petitioner effectively seeks to pursue a Bivens civil rights claim based 2 on inadequate medical treatment and exposure to COVID at the prison where he is 3 confined.4 Indeed, read together, Grounds One through Four state a classic 4 conditions of confinement claim that does not implicate the fact or duration of 5 Petitioner’s confinement. 6 Since the commencement of the COVID pandemic, numerous prisoners have 7 attempted to obtain habeas-based release from incarceration based on the pandemic. 8 Despite this flurry of lawsuits, whether prisoner actions asserting violations of 9 constitutional rights based on the COVID pandemic properly may sound in habeas is 10 not a settled issue. When the Ninth Circuit was presented with the question of 11 whether habeas review is available for claims that COVID conditions at a penal 12 institutional give rise to unconstitutional conditions of confinement, it declined to 13 resolve the issue. See Roman v. Wolf, 977 F.3d 935, 941-42 (9th Cir. 2020) (per 14 curiam). In the absence of Circuit precedent, numerous district courts within the 15 Ninth Circuit have concluded that such a claim is not cognizable in habeas review 16 notwithstanding that the remedy sought is release. 17 In Alvarez v. Larose, 445 F. Supp. 3d 861, 866 (S.D. Cal. 2020), appealed 18 dismissed, 2020 WL 8374097 (9th Cir. Oct. 15, 2020), federal criminal detainees 19 and convicted defendants sought Section 2241 habeas relief based on the alleged 20 failure to implement adequate COVID-related measures. The Court specifically 21 rejected the petitioners’ argument that because they sought release – a remedy 22 traditionally provided in habeas – they were entitled to proceed in habeas review. It 23 concluded that this argument improperly conflated the nature of the relief sought 24 25 3 See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 26 388 (1971), which applies when civil rights-type claims based on asserted deprivations of 27 constitutional rights are asserted against federal officials.
28 4 Petitioner does not actually assert that the matters of which he complains violate any 1 with the substance of the claim, which was to assert that conditions of confinement 2 were unconstitutional, a matter that should be raised in a civil rights claim rather 3 than through habeas. Id. More recently, in Jackson v. City of Twin Falls, No. 1:21- 4 cv-00013-BLW, 2021 WL 982307, at *3-*4 (D. Id. March 16, 2021), the district 5 court found that a state inmate’s COVID-based claim should have been brought as a 6 civil rights claim rather than through habeas. The opinion states: “[m]erely alleging 7 that no conditions of confinement could possibly satisfy the Eighth Amendment—an 8 allegation which every inmate could throw into any habeas corpus petition—does 9 not magically transform the nature of a conditions-of-confinement claim”; and 10 “[r]equesting release as the remedy for unconstitutional prison conditions does not 11 render the substantive conditions-of-confinement claim a challenge to the fact of an 12 inmate’s confinement.” 13 Wilson v. Ponce, 465 F. Supp. 3d 1037, 1047-49 (C.D. Cal. 2020), appeal 14 dismissed, 2020 WL 6293689 (9th Cir. Oct. 19, 2020) reviewed the existing caselaw 15 and found that inmate claims premised on the asserted dangers and risks posed by 16 COVID are not cognizable as habeas claims. The district court concluded that there 17 is no federal habeas jurisdiction for a claim that release is required due to the 18 institutional conditions caused by the COVID pandemic, because such a claim is not 19 an attack on the validity of the prisoner’s confinement or the particulars affecting its 20 duration.. With one exception noted below, district courts in this District have 21 drawn the same conclusion and dismissed habeas actions seeking release based on 22 claims that an inmate’s confinement during the COVID pandemic violated his Fifth 23 and/or Eighth Amendment rights, finding that the claims should be raised through a 24 civil rights action. See, e.g., Lustig v. Warden, FCI Lompoc, No. CV 20-3708-SB 25 (AGR), 2021 WL 1164493, at *1 (C.D. Cal. Jan. 4, 2021), accepted by 2021 WL 26 1164474 (March 26, 2021); Macias v. Bradley, No. 20-7114-RGK, 2020 WL 27 6681250, at *3 (C.D. Cal. Nov. 10, 2020); Jackson v. Von Blanckensee, No. CV 20- 28 4161 PA, 2020 WL 4905527, at *1 (C.D. Cal. Aug. 19, 2020); Sweeney v. Herrera, 1 No. CV 20-0427-CJC, 2020 WL 4980062, at *2 (C.D. Cal. June 8, 2020). 2 Other district courts have found that these types of COVID conditions of 3 confinement claims are cognizable on habeas review. See, e.g., Torres v. Milusnic, 4 472 F. Supp. 3d 713, 724-26 (C.D. Cal. 2020) (finding Section 2241 jurisdiction to 5 exist when the petitioners’ claims sought relief from COVID-related conditions at 6 their institution by challenging the “‘fact and duration of confinement on the basis 7 that no set of conditions of confinement under the present circumstances could be 8 constitutional’”; reasoning that such a claim challenges the “fact of confinement” 9 for habeas purposes); Bent v. Barr, No. 19-cv-6123-DMR, 2020 WL 3640009, at *2 10 (N.D. Cal. July 6, 2020) (granting a preliminary injunction and finding that habeas 11 jurisdiction existed over claim that challenged the validity of confinement in light of 12 the COVID pandemic). See also Wilson v. Williams, 961 F.3d 829, 837-39 (6th Cir. 13 2020) (Eighth Amendment claim based on prison officials’ alleged failure to create 14 safe conditions for prisoners during the COVID pandemic held to be “properly 15 brought under § 2241 because they challenge the fact or extent of their confinement 16 by seeking release from custody,” finding dispositive that the petitioners claimed 17 that “there are no conditions of confinement sufficient to prevent irreparable 18 constitutional injury” and, thus, the only relief available was release from prison). 19 This issue remains to be resolved at the Circuit level. At this time, however, 20 the Court finds persuasive those cases concluding that habeas jurisdiction is not 21 available. The barebones allegations of the Petition do not establish that there are 22 no conditions of confinement that could prevent constitutional violation here. 23 Indeed, the record shows that Petitioner has been offered the COVID vaccine 24 (possibly twice) and has declined it. It is possible that there is relief that could be 25 fashioned short of release, but in any event, any such relief would be more 26 appropriately considered in a civil rights action. See Douglas v. Jacquez, 626 F.3d 27 501, 504 (9th Cir. 2010) (“The power of a federal habeas court ‘lies to enforce the 28 right of personal liberty’ . . . [and as] such, a habeas court ‘has the power to release’ 1 a prisoner, but ‘has no other power.’”) (citations omitted). There is nothing alleged 2 in the Petition to support a finding that immediate release from an existing, valid 3 conviction and sentence imposed by another district court is the only relief 4 appropriate here. 5 Accordingly, Grounds One through Four of the Petition may not be 6 considered on Section 2241 habeas review. A court may construe a flawed habeas 7 petition as a civil rights complaint. See Wilwording v. Swenson, 404 U.S. 249, 251 8 (1971). Converting Grounds One through Four of the Petition to a Bivens complaint 9 would be improper, however, given that: (1) the Petition was not accompanied by 10 the $350 filing fee or a request to proceed without prepayment of the full filing fee; 11 (2) the Petition was not accompanied by an authorization by Petitioner to have the 12 $350 filing fee deducted from his trust account pursuant to 28 U.S.C. § 1915(b)5; 13 and (3) there is no reason to believe that Petitioner has exhausted his administrative 14 remedies for these claims, a prerequisite to filing a civil rights action.6 15 In addition, if Grounds One through Four of the Petition were converted to a 16 Bivens complaint, Petitioner would be obligated to pay the $350 filing fee for a civil 17 action, either in full up front or through withdrawals from his prison trust account in 18 accordance with the availability of funds. See 28 U.S.C. § 1915(b). The dismissal 19 of this action at the pleading stage or otherwise would not end Petitioner’s 20 obligation to pay that $350 filing fee. Further, the Court would be obligated to 21 screen the converted Petition pursuant to the screening provisions of the Prisoner 22
23 5 Petitioner is a prisoner, and thus, 28 U.S.C. § 1915(b) requires him to pay “the full amount 24 of a filing fee,” although he may do so through and initial partial payment and monthly payments thereafter rather than prepaying the entire amount. 25 6 42 U.S.C. § 1997e(a) provides that: “No action shall be brought with respect to prison 26 conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any 27 jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Section 1997e(a) requires exhaustion “irrespective of the forms of relief sought and 28 offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). 1 || Litigation Reform Act of 1995. See 28 U.S.C. § 1915A(b); 42 U.S.C. § 2 || 1997e(c)(1). Ifthe converted Petition ultimately were dismissed for failure to state a 3 || claim upon which relief may be granted, that dismissal could count as a “strike” 4 || against Petitioner for purposes of 28 U.S.C. § 1915(g). Whether or not Petitioner 5 || wishes to risk that possibility, as well as incur liability for the full $350 filing fee, 6 || are decisions he should make, not have decided for him. 7 For the foregoing reasons, it is appropriate to dismiss Grounds One through 8 || Four of the Petition without prejudice. Petitioner then may determine whether or 9 || not he wishes to raise the subject-matter of Grounds One through Four through a 10 || Bivens (or other) claim pleaded in a properly submitted civil complaint. In making 11 || that decision, Petitioner must take into account the administrative exhaustion 12 || requirement and remember that he must either submit the $350 filing fee with his 13 || complaint or submit the necessary 28 U.S.C. § 1915 documents and pay the $350 14 || filing fee over time if granted leave to do so. 15 x Ok ok ok Ok 16 For the foregoing reasons, IT IS ORDERED that: the Petition is dismissed 17 || without prejudice; and Judgment shall be entered dismissing this action without 18 || prejudice 19 99 || DATED: June 10,2021 C) Ww. Vw 21 JOHN A.KRONSTADT 2 UNITED STATES DISTRICT JUDGE 23 || PRESENTED BY: 24 TT 25 %6 GAIL J. STANDISH 37 UNITED STATES MAGISTRATE JUDGE
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