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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 ALBERTO ANGUIANO, Case No. 2:20-cv-07080-JFW (GJS) 12 Petitioner

ORDER DISMISSING PETITION

13 v. FOR WRIT OF HABEAS CORPUS

WITHOUT PREJUDICE

14 UNITED STATES OF AMERICA, et al., 15 Respondents. 16 17 18 On August 4 2020, Petitioner, a federal prisoner, filed a 28 U.S.C. § 2241 habeas 19 petition in this district, which alleges three grounds [Dkt. 1, “Petition”]. Petitioner 20 names as Respondents the United States of America and Patricia Bradley, the 21 Warden of FCI-Lompoc, the federal correctional institution at which Petitioner is 22 incarcerated. 23 24 THE PETITION’S CLAIMS 25 Ground One: Petitioner alleges that in June 2020, his brother sent him a package 26 in the mail, but unspecified prison officials refused to give it to him for 20 days. He 27 further alleges that a Congressman and a Director are “at each other’s throats” over 28 the COVID-19 situation at FCI-Lompoc, and as a result, Petitioner and another 1 prisoner were placed in the SHU at USP-Lompoc on or about July 15, 2020. 2 Petitioner alleges that correctional officers asked him and the other prisoner about 3 who wanted to see the Congressman and thereafter placed both men in the SHU for 4 “threat assessment.” Petitioner alleges that these circumstances were retaliatory, in 5 violation of his First Amendment rights. 6 Ground Two: Petitioner alleges that he has not been provided with a sufficient 7 amount of additional clothing and bedding and that a vent is clogged with lint or 8 dust. He complains that prisoners are given rotten fruit. Petitioner also complains 9 that they are given powdered milk that has to be mixed with warm water. He asserts 10 that the provision of powdered milk violates his First Amendment religious rights, 11 because Christians believe that powdered milk is forbidden and that cold, fresh milk 12 is required. He also complains that he was not provided with sanitation cleaning 13 supplies when he was moved to the SHU. 14 Ground Three: Petitioner alleges that since he has been in the SHU, prison 15 employees have restricted the use of radios. He contends that this violates his First, 16 Eighth, and Fourteenth Amendment right to listen to Christian radio stations. 17 The Petition does not identify the “habeas” relief that Petitioner seeks. The 18 Petitioner also does not allege that Petitioner had exercised and completed any of his 19 administrative remedies with respect to the above matters of which he complains. 20 21 DISCUSSION 22 Rule 1(b) of the Rules Governing Section 2254 Cases in the United States 23 District Courts, 28 U.S.C. foll. § 2254 (“Habeas Rules”), permits this Court to 24 “apply any or all of these rules” to any habeas petition, even if the petition is not 25 filed pursuant to 28 U.S.C. § 2254. Rule 4 of the Habeas Rules requires a district 26 court to dismiss a petition, without ordering a responsive pleading, when “it plainly 27 appears from the petition and any attached exhibits that the petitioner is not entitled 28 to relief.” Habeas Rule 4. For the following reasons, the Court has concluded that, 1 pursuant to Habeas Rule 4, summary dismissal of the Petition, without prejudice, is 2 required. See Bostic v. Carlson, 884 F.2d 1267, 1269–70 (9th Cir.1989) (affirming 3 district court’s dismissal of a Section 2241 petition under Habeas Rules 1(b) and 4). 4 A habeas corpus petition under 28 U.S.C. § 2241 is the proper vehicle for a 5 federal prisoner’s challenge to the execution of his sentence. See Hernandez v. 6 Campbell, 204 F.3d 861, 864 (9th Cir. 2000). By contrast, challenges to a prisoner’s 7 conditions of confinement must be brought through a civil rights action, rather than 8 through a habeas corpus petition. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 9 1991); see also Hill v. McDonough, 547 U.S. 573, 579 (2006) (“[a]n inmate’s 10 challenge to the circumstances of his confinement” must be brought through a civil 11 rights action); Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the 12 validity of any confinement or to particulars affecting its duration are the province 13 of habeas corpus . . . ; requests for relief turning on circumstances of confinement 14 may be presented in a § 1983 action.”) (cit. om.). A civil rights action is the “proper 15 remedy” for a prisoner “who is making a constitutional challenge to the conditions 16 of his prison life, but not to the fact or length of his custody.” Preiser v. Rodriguez, 17 411 U.S. 475, 499 (1973); see also Ramirez v. Galaza, 344 F.3d 850, 859 (9th Cir. 18 2003) (habeas jurisdiction is lacking, and a civil rights action instead is appropriate, 19 “where a successful challenge to a prison condition will not necessarily shorten the 20 prisoner’s sentence”). “[C]onstitutional claims that merely challenge the conditions 21 of a prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, 22 fall outside of that core [of habeas relief] and may be brought pursuant to § 1983 in 23 the first instance.” Nelson v. Campbell, 124 S. Ct. 2117, 2122 (2004). 24 The allegations of the Petition complain only about the conditions of Petitioner’s 25 confinement at FCI-Lompoc and in the SHU. Nothing he alleges relates to the 26 execution of his sentence. Through Grounds One through Three, Petitioner seeks to 27 pursue civil rights claims – apparently pursuant to Bivens v. Six Unknown Named 28 Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which applies 1 when claims are asserted against federal officials rather than 42 U.S.C. § 1983 – 2 based on conditions of his confinement that are alleged to violate the First, Eighth, 3 and Fourteenth Amendments. These three claims do not implicate the fact or 4 duration of Petitioner’s confinement, and thus, they are not cognizable under 5 Section 2241. Instead, the claims alleged in the Petition must be raised by way of a 6 Bivens complaint, rather than through a habeas petition brought under Section 2241. 7 The Court may construe a flawed habeas petition as a civil rights complaint. See 8 Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Converting the Petition to a 9 Bivens complaint would be improper, however, given that: (1) the Petition was not 10 accompanied by the $350 filing fee or a request to proceed without prepayment of 11 the full filing fee; (2) the Petition was not accompanied by a certified trust account 12 statement covering the past six months as required by 28 U.S.C. § 1915(a); (3) the 13 Petition was not accompanied by an authorization by Petitioner to have the $350 14 filing fee deducted from his trust account pursuant to 28 U.S.C. § 1915(b)1; (4) 15 based on Petitioner’s allegations and the timing of the matters alleged, it appears 16 likely that he has not exhausted his administrative remedies for most, if not all, of 17 his claims, a prerequisite to filing a civil rights action2; (5) no viable Bivens claim 18 has been stated against the named Respondents or any other person3; and (6) the 19 20 1 Petitioner is a prisoner, and thus, 28 U.S.C. § 1915(b) requires him to pay “the full amount of a filing fee,” although he may do so through and initial partial payment and monthly payments 21 thereafter rather than prepaying the entire amount.

22 2 42 U.S.C. § 1997e(a) provides that: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any 23 jail, prison, or other correctional facility until such administrative remedies as are available are 24 exhausted.” Section 1997e(a) requires exhaustion “irrespective of the forms of relief sought and offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). 25 3 The United States and the Warden of FCI-Lompoc are the named Respondents. The 26 United States is not a proper Defendant for a Bivens claim, as Petitioner’s claims against it would 27 be barred by sovereign immunity. See Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007). The Petition does not contain any allegations 28 with respect to Respondent Warden, such as what she did or did not do, much less identify what conduct by her violated the First, Eighth, and Fourteenth Amendments. Rather, the Petition 1 Petition fails to state the relief sought, an omission that not only violates Fed. R. 2 Civ. P. 8(a)(3) but is particularly problematic when Bivens claims are involved, 3 given that only limited types of relief are available in Bivens actions.4 4 In addition, if the Petition were converted to a Bivens complaint, Petitioner 5 would be obligated to pay the $350 filing fee for such a civil action, either in full up 6 front or through withdrawals from his prison trust account in accordance with the 7 availability of funds. See 28 U.S.C. § 1915(b). The dismissal of this action at the 8 pleading stage or otherwise would not end Petitioner’s obligation to pay that $350 9 filing fee. Further, the Court would be obligated to screen the converted Petition 10 pursuant to the screening provisions of the Prisoner Litigation Reform Act of 1995. 11 See 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). As noted above, the 12 allegations of the Petition do not state a cognizable Bivens claim against the two 13 named Respondents or anyone else. If the converted Petition ultimately were 14 dismissed for failure to state a claim upon which relief may be granted, that 15 dismissal could count as a “strike” against Petitioner for purposes of 28 U.S.C. § 16 1915(g), which provides that a prisoner who has three “strikes” – i.e.,. prior actions 17 dismissed on the grounds that they are frivolous, malicious, or fail to state a claim 18 upon which relief may be granted – may not bring an action or appeal without 19 prepayment of the full filing fee unless “the prisoner is under imminent danger of 20 serous physical injury.” 21 22 appears to constitute an improper and noncognizable attempt to hold the Warden vicariously liable 23 premised on the doctrine of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); 24 Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013).

25 In addition, the Bivens remedy is a limited one that, to date, has been approved by the Supreme Court in only three instances; extending it to others is disfavored. See Ziglar v. Abbasi, 26 137 S. Ct. 1843, 1854-57 (2017). None of the Petition’s allegations fall within the scope of those 27 three permissible types of Bivens claims and it is not apparent that any extension of the Bivens remedy to the matters alleged in the Petition would be warranted. 28 4 See Ministerio Roca Solida v. McKelvey, 820 F.3d 1090, 1093-94 (9th Cir. 2016). 1 Thus, the Court believes it is appropriate to dismiss the Petition, without 2 || prejudice. Petitioner then may determine whether or not he wishes to raise the 3 || subject-matter of the Petition through Bivens (or other) claims pleaded in a properly- 4 || submitted civil complaint. In making that decision, Petitioner must take into 5 || account the administrative exhaustion requirement and remember that he must either 6 || submit the $350 filing fee with his complaint or submit the necessary 28 U.S.C. § 7 || 1915 documents and pay the $350 filing fee over time if granted leave to do so. 8 Accordingly, for the foregoing reasons, it is ORDERED that the Petition shall 9 || be DISMISSED WITHOUT PREJUDICE. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 || DATED: August 11, 2020 14 A th nee serty AIN/F. WALTER 15 AUNIIED STATES DISTRICT JUDGE 16 17 || Submitted by:

19 99 || GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

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