1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARCO A. NUNEZ, ) NO. CV 20-7429-DMG(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 MR. W.S. PLILER, ) ) 15 Respondent. ) ______________________________) 16 17 18 PROCEEDINGS 19 20 On August 3, 2020, Petitioner, an inmate at the Federal 21 Correctional Institution at Victorville, California, filed a document 22 titled “Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241; 23 1657.” The Petition contains four grounds for relief. 24 25 In Ground One, Petitioner claims that prison authorities have 26 violated the Eighth Amendment, prison regulations and Program 27 Statements of the Federal Bureau of Prisons by assertedly failing to 28 honor Petitioner’s “lower bunk chrono” (Petition, pp. 3-4). 1 Petitioner alleges he suffers from hypoxemia which requires the use of 2 a breathing apparatus (id.). Petitioner further alleges that a unit 3 counselor subjected Petitioner to retaliation and race discrimination 4 by allegedly firing Petitioner from his job, moving Petitioner into a 5 “filthy” three-man cell “which is not set-up as a medical cell,” 6 denying Petitioner a shower for five days and maintaining a “vendetta” 7 against Petitioner for helping other inmates (id., pp. 2-6). 8 9 In Ground Two, Petitioner alleges he has been denied access to 10 the law library, in asserted violation of the First Amendment (id., p. 11 6). 12 13 In Ground Three, Petitioner alleges that prison authorities have 14 violated Petitioner’s rights under the First Amendment, the Religious 15 Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and prison 16 regulations by assertedly denying Petitioner access to Bible studies, 17 a religious diet and religious services, activities, ceremonies and 18 programs (id., p. 7). 19 20 In Ground Four, Petitioner alleges violations of the Eighth 21 Amendment and state law based on assertions that prison authorities: 22 (1) placed Petitioner in “a non-medical three man cell” where he 23 assertedly remains for 23 3/4 hours a day without exercise; (2) denied 24 Petitioner religious services; (3) provided only limited access to 25 phones and email; and (4) denied Petitioner the use of the 26 recreational library and the law library (id., pp. 7-8). 27 /// 28 /// 1 DISCUSSION 2 3 Habeas corpus “is the exclusive remedy . . . for the prisoner who 4 seeks ‘immediate or speedier release’ from confinement.” Skinner v. 5 Switzer, 562 U.S. 521, 525 (2011) (citation omitted). A challenge to 6 the fact or duration of confinement which, if successful, would result 7 in immediate or speedier release falls within the “core” of habeas 8 corpus. Preiser v. Rodriguez, 411 U.S. 475, 487-89 (1973); Nettles v. 9 Grounds, 830 F.3d 922, 927-29 (9th Cir. 2016) (en banc), cert. denied, 10 137 S. Ct. 645 (2017). A civil rights action is the exclusive vehicle 11 for an inmate’s claim that does not fall within the “core” of habeas 12 corpus, such as a challenge to the conditions of confinement. Nettles 13 v. Grounds, 830 F.3d at 931-34. Accordingly, Petitioner may not use 14 the present habeas corpus Petition to bring any of his claims, all of 15 which challenge allegedly unlawful conditions of Petitioner’s 16 confinement. Petitioner may attempt to assert such claims through the 17 vehicle of a civil rights action pursuant to Bivens v. Six Unknown 18 Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) 19 (“Bivens”).1 20 21 This Court declines to exercise its discretion to convert the 22 present Petition into a Bivens complaint. “If the complaint is 23 amenable to conversion on its face, meaning that it names the correct 24 defendants and seeks the correct relief, the court may recharacterize 25 the petition so long as it warns the pro se litigant of the 26 27 1 The Court expresses no opinion regarding whether a Bivens remedy is available to Petitioner on the claims alleged in 28 the Petition. See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) 1 consequences of the conversion and provides an opportunity for the 2 litigant to withdraw or amend his or her complaint.” Nettles v. 3 Grounds, 830 F.3d at 936 (citations and internal quotations omitted). 4 The Petition is not “amenable to conversion on its face.” First, the 5 Petition does not appear to name “the correct defendants.” The 6 Petition names only the Warden as Respondent, rather than the prison 7 officials of whose alleged actions or inaction Petitioner complains. 8 Additionally, “a habeas corpus action and a prisoner civil rights suit 9 differ in a variety of respects - such as . . . filing fees, the means 10 of collecting them, and restrictions on future filings - that may make 11 recharacterization impossible or, if possible, disadvantageous to the 12 prisoner compared to a dismissal without prejudice of his petition for 13 habeas corpus.” Nettles v. Grounds, 830 F.3d at 935-36 (citations and 14 internal quotations omitted); see also id. at 932 n.8 (describing 15 differences between procedural requirements applicable to habeas 16 corpus actions and to civil rights actions). Accordingly, conversion 17 of the present Petition into a Bivens complaint would be 18 inappropriate. See Perdomo v. Warden Loretto FCI, 700 Fed. App’x 93, 19 94 (3d Cir. 2017) (“Given the significant differences between the 20 rules and fees applicable to a prisoner’s general civil litigation 21 case and a request for habeas relief, we cannot conclude that the 22 District Court abused its discretion in denying Perdomo’s request to 23 have his § 2241 petition re-characterized as a Bivens action.”); Cohen 24 v. Lappin, 402 Fed. App’x 674, 676 (3d Cir. 2010) (district court did 25 not abuse discretion in denying petitioner’s requests for 26 recharacterization of his section 2241 petition as a civil rights 27 complaint, “given the significant differences between the rules 28 applicable to a prisoner’s general civil litigation case and a request 1] for habeas relief. . . .”); Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005) (court relied on myriad differences between habeas actions and civil rights actions in affirming district court’s refusal to 4|| recharacterize a habeas petition as a civil rights complaint) ; 5] Jorgenson v. Spearman, 2016 WL 2996942, at *1 (C.D. Cal. May 22, 2016) 6] (declining to convert a flawed habeas petition into a civil rights 7) complaint “in light of the considerable procedural and substantive 8] differences between habeas corpus and civil rights matters”). 9 10 ORDER 11 12 For the foregoing reasons, the Petition and the action are 13|| dismissed without leave to amend but without prejudice. 14 DATED: October 1, 2020 16 Ma.

OLLY M. GEE

18 UNITED®STATES DISTRICT JUDGE 19 Presented this 20th day of August, 2020, by: 22 23

CHARLES F. EICK

UNITED STATES MAGISTRATE JUDGE

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