BACKGROUND

21 Petitioner is a federal inmate serving a sentence imposed by the United 22 States District Court for the Southern District of Iowa. (Dkt. No. 1 at 3 23 (“Petition”).) On November 4, 2021, Petitioner constructively filed this Petition For 24 Writ of Habeas Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 25 2241. At the time he filed the Petition, he was incarcerated at the Federal 26 Correctional Institution in Lompoc, California. (Id.) He is currently incarcerated in 27 the United States Penitentiary Hazelton in West Virginia. (Dkt. No. 5.) 28 Case 2:21-cv-09120-DSF-AGR Document 6 Filed 05/13/22 Page 2 of 5 Page ID #:26

1 The Petition does not challenge Petitioner’s conviction or sentence. 2 (Petition at 3.) Instead, the Petition challenges prison conditions. Specifically, 3 Petitioner complains about the correctional officers’ refusal to make copies of his 4 Petition and sign the declaration page of his IFP form. (Id. at 4-5.) 5 II. 6 DISCUSSION 7 Rule 4 of the Rules Governing Section 2254 Cases in the United States 8 Courts (Rule 4) is applicable to proceedings brought pursuant to section 2241. 9 Rule 1(b) of the Rules Governing Section 2254 Cases. Rule 4 provides that “[i]f it 10 plainly appears from the face of the petition and any attached exhibits that the 11 petitioner is not entitled to relief in the district court, the judge must dismiss the 12 petition and direct the clerk to notify the petitioner.” Here, summary dismissal is 13 warranted. 14 A challenge of the fact or duration of confinement which, if successful, 15 would result in immediate or speedier release falls within the “core” of habeas 16 corpus. See Preiser v. Rodriguez, 411 U.S. 475, 487-500 (1973); Nettles v. 17 Grounds, 830 F.3d 922, 927-29 (9th Cir. 2016) (en banc). On the other hand, a 18 civil rights action is “the exclusive vehicle for claims brought by [] prisoners that 19 are not within the core of habeas corpus.” Id. 20 Petitioner does not challenge his conviction, sentence, or the duration of 21 his confinement. Instead, he challenges the allegedly unlawful conditions of his 22 confinement. Accordingly, Petitioner’s claims are not cognizable in federal 23 habeas. See Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (federal 24 prisoner asserting civil rights claims must file Bivens action rather than § 2241 25 petition); Crawford v. Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir. 1979) (affirming 26 dismissal of habeas petition because challenges to terms and conditions of 27 confinement must be brought as civil rights complaint). 28 Petitioner may attempt to assert claims challenging conditions of 2 Case 2:21-cv-09120-DSF-AGR Document 6 Filed 05/13/22 Page 3 of 5 Page ID #:27

1 confinement through a civil rights action pursuant to Bivens v. Six Unknown 2 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 3 A federal court has the authority to construe a habeas corpus petition as a 4 civil rights complaint under certain circumstances. See Wilwording v. Swenson, 5 404 U.S. 249, 251 (1971) (per curiam); Nettles, 830 F.3d at 936 (district court 6 may construe a petition for habeas corpus as a civil rights action after notifying 7 and obtaining informed consent from the prisoner). However, the Court declines 8 to do so here for the following reasons. 9 First, it is unclear whether the Petition names the correct defendants. The 10 Petition names the Warden as the sole respondent. However, the bulk of 11 Petitioner’s complains concern the conduct of various prison staff. (Petition at 4- 12 5.) It is not clear what role, if any, the named respondent had in connection with 13 the rest of the conduct of which Petitioner’s complains. See Serra v. Lappin, 600 14 F.3d 1191, 1200 (9th Cir. 2010) (“To state a claim for relief under Bivens, a 15 plaintiff must allege that a federal officer deprived him of his constitutional 16 rights.”); see also Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (holding 17 that “respondeat superior is inapplicable to Bivens actions”). 18 Second, Petitioner failed to specify the capacity in which the named 19 respondent(s) would be sued for purposes of a civil rights claim, which is critical 20 to the issue of sovereign immunity. See Solida v. McKelvey, 820 F.3d 1090, 21 1094 (9th Cir. 2016) (“By definition, Bivens suits are individual capacity suits and 22 thus cannot enjoin official government action.”) 23 Third, the various differences in the procedures undertaken in habeas 24 proceedings and civil rights actions, including the amount of filing fees and the 25 potential restrictions on future filings, further counsel against converting the 26 Petition into a Bivens civil rights complaint. See, e.g., Nunez v. Pliler, 2020 WL 27 5880461, at *2 (C.D. Cal. Oct. 1, 2020) (conversion of habeas corpus petition into 28 a Bivens complaint inappropriate where petition did not name correct prison 3 Case 2:21-cv-09120-DSF-AGR Document 6 Filed 05/13/22 Page 4 of 5 Page ID #:28

1 officials and considering significant difference in procedural requirements 2 between habeas corpus and civil rights actions); Rockett v. Lepe, 2020 WL 3 4003585, at *1-2 (E.D. Cal. July 15, 2020) (same). The Court therefore will 4 dismiss the habeas action without prejudice to Petitioner’s ability to file a separate 5 civil rights action under Bivens. 6 If Petitioner chooses to file a civil rights action, he is advised that he must 7 either (1) pay the filing fee of $350 plus a $50 administrative fee for a total of 8 $400; or (2) file a Request to Proceed Without Prepayment of Filing Fees with 9 Declaration in Support (“IFP Request”). 10 If his IFP Request is granted, he will be obligated to pay the filing fee of 11 $350 even if his complaint is unsuccessful. The Clerk is directed to send to 12 Petitioner a prisoner civil rights complaint with forms, instructions and further 13 information. In summary, the Court would assess an initial partial filing fee equal 14 to 20% of the average monthly deposits to his prison account for the six months 15 immediately preceding the filing of the action, or 20% of the average monthly 16 balance in his prison account for that same six month period, whichever is 17 greater. The Court would order the prison to take that initial partial filing fee out 18 of his prison account and forward the money to the Clerk of Court. He would owe 19 the balance of the $350 filing fee. Until the balance is paid in full, he will owe 20 monthly payments as described in the instructions that the Clerk will forward to 21 Petitioner. 22 The IFP Request requires that Petitioner complete the Prisoner 23 Authorization and have a prison official complete the Certification Section on the 24 Declaration and attach a certified copy of his prison trust account statement for 25 the six months immediately preceding the filing of the complaint. 26 27 28 4 ase 2:21-cv-09120-DSF-AGR Document6 Filed 05/13/22 Page5of5 Page ID#:29

1 lll. 2 CONCLUSION 3 For the foregoing reasons, IT |S ORDERED that the Petition for Writ of 4 || Habeas Corpus is dismissed without prejudice to Petitioner's ability to file a 5 || separate civil rights action. All pending motions are denied as moot. The Clerk is 6 || directed to send a federal prisoner civil rights packet to Petitioner.

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8 || DATED: May 13, 2022 Kobe B. _ Je per? 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Zt 28