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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 WILLIAM GREEN, Case No. CV 21-1456-DMG (GJS) 12 Petitioner

ORDER DISMISSING

13 v. PETITION WITHOUT

PREJUDICE

14 W.Z. JENKINS II, WARDEN,

15 Respondent. 16

17 18 19 Petitioner is a federal prisoner currently incarcerated within this District. The 20 Clerk’s Office received a putative 28 U.S.C. § 2241 petition from him on February 21 11, 2021, which was assigned to the undersigned on February 17, 2021 (“Petition”). 22 Although the Petition bears the words “emergency motion” in its title and states 23 cursorily that Petitioner seeks a “restraining order or injunction” requiring his 24 immediate release from federal custody, this, of course, is the very same, and only, 25 relief that could be afforded as habeas relief on the merits, albeit on an expedited 26 basis. As Petitioner has not actually complied with the requisites for obtaining 27 emergency injunctive relief, the Court will construe the Petition as seeking 28 “expedited adjudication” on the merits, as Petitioner requests [see Petition at 3]. 1 2 Petition (“Amendment”) from Petitioner. Although the Amendment has not yet 3 been docketed and entered onto CM/ECF, given Petitioner’s request for expedited 4 review, the Court has considered it along with the Petition. 5 The Court has screened the Petition1 on an expedited basis and considered 6 Petitioner’s allegations and claims carefully. Based on its review, the Court 7 concludes that summary dismissal of this action, without prejudice, is required, for 8 the reasons below. 9 10 BACKGROUND 11 Pursuant to Rule 201 of the Federal Rules of Civil Procedure, the Court takes 12 judicial notice of the federal dockets and filings available through the PACER 13 system. These records show that in Case No. 3:11-cr-00938-LAB in the United 14 States District Court for the Southern District of California (the “Sentencing 15 Court”), Petitioner was charged with violations of 18 U.S.C. §§ 2552(a)(2) and 16 (a)(4)(B).2 Following a February 14, 2013 plea by Petitioner, he was convicted of 17 one count of violating 18 U.S.C. § 2552(a)(4)(B). In December 2013, Petitioner 18 received a sentence of 87 months, to be followed by ten years of supervised release. 19 Petitioner did not appeal the above conviction or sentence. On October 24, 20

21 1 Habeas petitions brought pursuant to Section 2241 may be subjected to the same screening requirements that apply to habeas petitions brought pursuant to 28 U.S.C. § 2254. See Rules 1(b) 22 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 23 mandating that a district court dismiss a petition without ordering a responsive pleading where “it 24 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief”); see also Bostic v. Carlson, 884 F.2d 1267, 1269-70 (9th Cir. 1989) (affirming district 25 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 26 and proposed judgment if it plainly appears from the face of the habeas petition that the petitioner 27 is not entitled to relief).

28 2 These charges were for knowing receipt or distribution of child pornography, and knowing possession, or access with the intent to view, of child pornography. 1 2 U.S.C. § 2255 motion. On October 28, 2014, the Sentencing Court denied the 3 motion, finding that no good cause existed for the requested extension. On 4 November 18, 2014, Petitioner sought reconsideration, which was denied on 5 November 20, 2014. Rather than file a Section 2255 motion within the remaining 6 portion of his limitations period, Petitioner instead appealed both rulings. On 7 August 1, 2016, the United States Court of Appeals for the Ninth Circuit dismissed 8 the appeal for lack of jurisdiction, and on October 21, 2016, denied rehearing (Case 9 No. 14-50563). 10 Within a year, Petitioner was charged with violating his supervised release 11 conditions. On January 8, 2018, Petitioner admitted allegation #1 (use of a 12 computer capable of accessing the internet, without permission of his probation 13 officer and that did not have monitoring software installed), and on the next day, a 14 hearing was held with respect to contested allegation #2 (failure to participate in an 15 approved state-certified sex offender treatment program as directed), after the 16 Sentencing Court denied Petitioner’s motion to dismiss the allegation. The 17 Sentencing Court ordered further conditions of supervised release. Petitioner 18 appealed the denial of the motion to dismiss, and the appeal was dismissed on 19 January 24, 2019. Meanwhile, on September 18, 2018, Petitioner appeared for a 20 final revocation hearing, at which time the Sentencing Court modified his 21 supervised release conditions and ordered Petitioner to complete his term of 22 supervised release. 23 In November 2019, another charge was filed alleging that Petitioner again had 24 violated the terms of his supervised release. On September 21, 2020, the Sentencing 25 Court found Petitioner in violation as to allegation #5 (patronizing a place where 26 actual sexually explicit conduct involving adults is the primary material or 27 entertainment), revoked his supervised release, and imposed an 18-month term of 28 imprisonment to be followed by ten years of supervised release (the “Conviction” 1 2 20-50257). A month and a half later, on November 11, 2020, Petitioner filed a 3 motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). The docket 4 does not reflect any ruling on that motion. In his appellate opening brief, Petitioner 5 argued, inter alia, that: the Conviction was not supported by sufficient evidence; 6 the Conviction was the product of evidence obtained in violation of the Fourth 7 Amendment; the Sentencing Court misinterpreted the applicable sentencing 8 guidelines; the Sentence was twice the applicable guidelines range and was 9 substantively unreasonable; and the Sentence, coupled with the Sentencing Court’s 10 “refusal to act” on Petitioner’s motion for compassionate release, violated 11 Petitioner’s Eighth Amendment right against cruel and unusual punishment. 12 According to the Federal Bureau of Prisons (“BOP”) website, Petitioner’s 13 projected release date is November 11, 2021. He currently is incarcerated at the Los 14 Angeles Metropolitan Detention Center (“MDC”). 15 16 PETITIONER’S CLAIMS 17 Petitioner alleges that he is 73 years old and has serious health issues. The 18 Petition attaches some medical documentation indicating that he has a history of 19 cardiac problems, strokes, traumatic brain injury, cancer, and back conditions, 20 among other issues. While Petitioner discusses these medical conditions and the 21 ongoing COVID pandemic as a part of his narrative allegations, the habeas claims 22 alleged in the Petition do not rest on this situation. Rather, with one exception 23 discussed below, Petitioner’s assertions of constitutional violation warranting 24 habeas relief and his stated habeas claims focus on events prior to and surrounding 25 his 2020 Sentence and Conviction. The bulk of the Petition’s arguments are 26 directed to Petitioner’s contentions that he is innocent of the charge that is the basis 27 for the Conviction, the Sentence is unfair, he received ineffective assistance from his 28 attorneys, and the Sentencing Court Judge is biased against him. Specifically, the 1 2 Ground One: Petitioner contends that he is being deprived of his First 3 Amendment right to the free exercise of his religion – Christian Science – because 4 he is being impaired in his efforts to use Christian Scientist practitioners for the 5 treatment of his medical problems. Petitioner alleges that due to certain conditions 6 at MDC – the COVID-related lockdown, his placement in the Secured Housing 7 Unit, his institution’s ten minute limit on phone calls, and a one hour waiting time 8 for phone calls – he has been deprived of “meaningful, effective contact and 9 treatment” with Christian Scientist practitioners, and therefore, he has been forced to 10 resort to conventional medical care, which is “deficient, absent and denied.” 11 [Petition at 4, 27.] 12 Ground Two: Petitioner contends that he has been deprived of his Fifth 13 Amendment rights to due process and equal protection, because of the Sentencing 14 Court Judge’s alleged bias, animus, and anger-based punishment of Petitioner in 15 connection with the Conviction and the Sentence. Petitioner asserts that the 16 Conviction and the Sentence are illegal and wrongful, as is the Sentencing Court’s 17 failure to rule on his November 2020 compassionate release motion. [Petition at 4, 18 27-28.] 19 Ground Three: Petitioner contends that the conduct of the three attorneys 20 who represented him in connection with the above-described revocation of 21 supervised release proceedings and pending appeal of the Conviction and Sentence 22 violated his Sixth Amendment right to the effective assistance of counsel. Petitioner 23 alleges that his first attorney wrongfully refused to seek the recusal of the 24 Sentencing Court Judge, refused to file a memorandum of facts to refute the 25 Probation Office’s submission, refused to conduct a factual investigation to obtain 26 information to rebut the charged violation, refused to seek the return of Petitioner’s 27 tablet to him, coerced Petitioner into admitting one allegation despite his medical 28 status at the time, and abandoned him when he asked to have another attorney 1 2 prepare the case with Petitioner, refused Petitioner’s requests to “see the discovery,” 3 was completely unprepared at the September 21, 2020 hearing, asked Petitioner to 4 prepare cross examination questions for a Probation Officer, failed to challenge the 5 factual predicate for allegation #5, failed to object to the 18-month sentence 6 imposed, failed to object to the illegal search of Petitioner’s phone, failed to review 7 the Judgment (which contained an erroneous sex offender counseling condition), 8 refused to deliver the case files to Petitioner’s attorney in a timely manner, failed to 9 notice that Petitioner’s phone never viewed any porn videos, and failed to object to 10 the Sentencing Court’s misapplication of sentencing factors and attacks on 11 Petitioner. Petitioner alleges that his third attorney refused to update the 12 compassionate release motion, refused to seek a writ of mandamus to compel the 13 Sentencing Court to rule on that motion, refused to seek emergency expedited 14 adjudication of the pending appeal, refused to contact the Sentencing Court to seek 15 correction of the erroneous sex offender counseling condition, failed to obtain all 16 medical records to use in the compassionate release motion and on appeal, failed to 17 filed a reply to the Government’s opposition to the compassionate release motion, 18 and refused to file or assist in the filing of a Section 2241 habeas petition. [Petition 19 at 4, 29-31.] 20 Ground Four: Petitioner contends that his Conviction and his Sentence 21 violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. He 22 contends that the Sentencing Court Judge imposed the Conviction as punishment, 23 due to the Judge’s bias, animus, and prejudice, and that the Sentence is illegal and 24 also was imposed as “punishment” within the meaning of the Cruel and Unusual 25 Punishment Clause. Petitioner also contends that the Sentencing Court’s failure to 26 rule on the November 2020 compassionate release motion is “punishment” within 27 the meaning of the Cruel and Unusual Punishment Clause. [Petition at 4, 31-32.] 28 1 2 3 I. The Court Lacks Jurisdiction To Consider Grounds Two Through Four. 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). Petitioner is a federal 7 prisoner who seeks to challenge the Conviction and Sentence by this action. For 8 federal prisoners wishing to challenge matters related to their convictions and/or 9 sentences, there are two statutory bases for federal district court jurisdiction: 28 10 U.S.C. § 2241 (“Section 2241”); and 28 U.S.C. § 2255 (“Section 2255”). 11 A Section 2241 habeas petition may be filed by a federal prisoner to attack 12 the “execution of his sentence,” but not to attack its validity. White v. Lambert, 370 13 F.3d 1002, 1009 (9th Cir. 2004); Hernandez, 204 F.3d at 864. A motion under 14 Section 2255 generally is the exclusive mechanism – outside of a direct appeal – by 15 which a federal prisoner may challenge the validity or legality of his conviction or 16 sentence. See Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012); Harrison v. 17 Ollison, 519 F.3d 952, 955 (9th Cir. 2008). Petitioner asserts that, by the Petition, 18 he “challenges 1) the fact of his conviction and sentence, 2) the manner of execution 19 of his sentence, 3) and the duration of his sentence,” and that he may do so under 20 Section 2241. [Petition at 18.] 21 Contrary to Petitioner’s assertion, Grounds Two through Four of the instant 22 Petition do not attack the execution of Petitioner’s sentence. These three claims 23 plainly attack the validity of Petitioner’s Conviction and related Sentence directly, 24 namely, by attacks on the “fact” of the Conviction and Sentence. Petitioner 25 contends that his Conviction and Sentence were imposed in violation of the Fifth 26 and Eighth Amendments for the alleged reasons outlined above (Grounds Two and 27 Four). He contends that he suffered the Conviction and Sentence as the result of 28 numerous instances of ineffective assistance provided by his attorneys, and is 1 2 Sentence, all in violation of his Sixth Amendment rights (Ground Three). These are 3 not attacks on the manner in which the Sentence is being executed no matter how 4 liberally the Petition is construed. Rather, Grounds Two through Four fall squarely 5 within the purview of Section 2255, because they expressly challenge the validity of 6 the Conviction and Sentence. Thus, Grounds Two through Four are required to be 7 raised by way of Section 2255 motion rather than Section 2241 habeas petition.3 8 There is, however, “one exception” to the generally exclusive nature of the 9 Section 2255 remedy for federal prisoners who wish to challenge the validity of 10 their convictions and/or sentences. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 11 2006). Section 2255(e) contains a “savings clause” or “escape hatch,” which allows 12 a federal prisoner to seek Section 2241 relief when a Section 2255 motion is 13 “inadequate or ineffective to test the legality of his detention.” See id.; see also 14 Muth, 676 F.3d at 818; Harrison, 519 F.3d at 956. A finding that Section 2255 is an 15 inadequate or ineffective remedy constitutes “a narrow exception” to the rule that 16 Section 2255 provides a federal prisoner’s exclusive remedy for challenging a 17 conviction and/or sentence. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 18 1997); see also Ivy v. Pontesso, 328 F.3d 1057, 1069 (9th Cir. 2003). 19 The Ninth Circuit has construed the “inadequate or ineffective” language of 20 Section 2255(e) narrowly and made clear that it does not serve as a mechanism for 21

22 3 Ground Two also attacks the Sentencing Court’s failure to rule on the motion for compassionate release that Petitioner filed in November 2020. That subclaim should be raised in 23 the Sentencing Court itself – through a request for ruling – or in the Ninth Circuit by seeking an 24 order directing the Sentencing Court to rule. In fact, as noted earlier, Petitioner has included within his opening brief in his pending Ninth Circuit appeal a complaint that the motion has not 25 yet received a ruling. This Court lacks jurisdiction to render a ruling about a motion pending before another District Court, and the subclaim does not belong in this District. See, e.g., Macias 26 v. Bradley, No. CV 20-714-RGK, 2020 WL 6681250, at *2 (C.D. Cal. Nov. 10, 2020) (dismissing 27 request by petitioner seeking compassionate release when he had been sentenced in the Eastern District of California, where he had such a motion pending); Sweeney v. Hererra, No. CV 20- 28 0427-CJC, 2020 WL 4980062, at *3 (C.D. Cal. June 8, 2020) (only the sentencing court or the BOP may consider a request for compassionate release, not the district of incarceration) 1 2 328 F.3d at 1059; Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). In the 3 Ninth Circuit, the Section 2255 remedy qualifies as inadequate or ineffective only 4 “‘when a petitioner (1) makes a claim of actual innocence, and (2) has not had an 5 unobstructed procedural shot at presenting that claim.’” Harrison, 519 F.3d at 959 6 (citation omitted); see also Muth, 676 F.3d at 819. The petitioner bears the burden 7 of proving the inadequacy or ineffectiveness of the Section 2255 remedy. See 8 Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 9 Petitioner has not met that burden here, nor can he do so, because he cannot 10 satisfy the above-noted second requirement. He has an appeal pending in the Ninth 11 Circuit in which many of the Petition’s attacks on his Conviction and Sentence have 12 been raised and, thus, will be considered by the Ninth Circuit. As to those claims, 13 Petitioner has an “unobstructed procedural shot” for raising them and has done so. 14 To the extent that Grounds Two through Four raise additional attacks on the 15 Conviction and Sentence not included within Petitioner’s appeal briefing, he has yet 16 to file a Section 2255 motion in the Sentencing Court and there is no apparent 17 procedural impediment to him doing so. Given the September 2020 date of the 18 Conviction and Sentence, Petitioner currently has ample time left within the one- 19 year statute of limitations period. In addition, this is not an instance in which 20 Petitioner would need permission from the Circuit Court to bring a second or 21 successive Section 2255 motion and, thus, to meet the stringent requirements of 28 22 U.S.C. § 2255(h), because Petitioner has never attempted to raise these claims in the 23 proper forum, i.e., the Sentencing Court, through a request for Section 2255 relief. 24 To demonstrate that he never had an “unobstructed procedural shot” with 25 respect to his present Grounds Two through Four claims, Petitioner must show that 26 he never had an opportunity to raise the claims on appeal or in a Section 2255 27 motion. See Harrison, 519 F.3d at 960. That plainly is not the case. Because 28 Petitioner cannot satisfy the “has not had an unobstructed procedural shot” 1 2 with respect to the attacks on his Conviction and Sentence raised by Grounds Two 3 through Four, he may not raise these claims through a Section 2241 habeas petition. 4 Accordingly, Section 2241 jurisdiction is lacking with respect to Grounds Two 5 through Four of the Petition and dismissal of the claims without prejudice on this 6 basis is warranted.4 7 8 II. Ground One Is Not Cognizable In Habeas Review. 9 Ground One of the Petition rests on Petitioner’s contention that his First 10 Amendment right to the free exercise of his religion had been impaired by 11 limitations on his ability to make telephone calls to Christian Science practitioners. 12 Petitioner complains that various conditions at his institution (including restrictions 13 resulting from the COVID-10 pandemic, his SHU placement, time restrictions, and 14 waits to access telephones) have affected his ability to obtain meaningful telephone- 15 based medical “treatment” from other Christian Scientists. Petitioner alleges that, as 16 a result of this impairment of his telephone access to Christian Science practitioners, 17 he has been required to utilize medical resources at his facility, which he labels 18 deficient or unavailable.5 19 As noted earlier, a Section 2241 habeas corpus petition is a vehicle for a 20 21 4 The Court acknowledges that the transfer of civil actions to cure jurisdictional defects is 22 permitted by 28 U.S.C. § 1631. Hernandez, 204 F.3d at 865 n.6. The Court, however, concludes that transfer of the Petition would not be appropriate in this instance given Ground One of the 23 Petition and Petitioner’s COVID-related allegations, which relate to his incarceration at MDC, 24 within this District. Instead, if Petitioner wishes to pursue his Grounds Two through Four attacks on the Conviction and Sentence (as well as his complaint that there has not yet been a ruling on 25 the compassionate release motion), it would be most appropriate for him to raise them through a Section 2255 motion filed in the Sentencing Court. 26

27 5 The Court notes that Petitioner asserts that the reason immediate release is required is so that he can receive treatment by a “high level” medical “specialist,” including hospital care 28 [Petition at 25], not so that he can more freely practice his religion by having a greater ability to consult with Christian Science practitioners. 1 2 at 864. Challenges to a prisoner’s conditions of confinement, however, must be 3 brought through a civil rights action, rather than through a habeas corpus petition. 4 See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); see also Hill v. McDonough, 5 547 U.S. 573, 579 (2006) (“[a]n inmate’s challenge to the circumstances of his 6 confinement” must be brought through a civil rights action); Muhammad v. Close, 7 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to 8 particulars affecting its duration are the province of habeas corpus . . . ; requests for 9 relief turning on circumstances of confinement may be presented in a § 1983 10 action.”) (cit. om.). A civil rights action is the “proper remedy” for a prisoner “who 11 is making a constitutional challenge to the conditions of his prison life, but not to the 12 fact or length of his custody.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973); see 13 also Ramirez v. Galaza, 344 F.3d 850, 859 (9th Cir. 2003) (habeas jurisdiction is 14 lacking, and a civil rights action instead is appropriate, “where a successful 15 challenge to a prison condition will not necessarily shorten the prisoner’s 16 sentence”). “[C]onstitutional claims that merely challenge the conditions of a 17 prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall 18 outside of that core [of habeas relief]” and, instead, should be brought as a civil 19 rights claim “in the first instance.” Nelson v. Campbell, 541 U.S. 637, 643 (2004). 20 The allegations of Ground One of the Petition complain only about the 21 conditions of Petitioner’s confinement. Nothing he alleges through Ground One – 22 directly or by implication – relates to the execution of his Sentence Through his 23 allegations, Petitioner effectively seeks to pursue a Bivens civil rights claim6 based 24 on conditions of his confinement that are alleged to violate the First Amendment, 25 namely, that he is not receiving adequate telephone access and time, and thus, he 26 27 6 See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which applies when civil rights-type claims based on asserted deprivations of 28 constitutional rights are asserted against federal officials. 1 2 for medical advice and treatment. Indeed, Ground One states a classic conditions of 3 confinement claim, i.e., that the conditions of confinement at Petitioner’s institution 4 are violating a constitutional right he possesses. This claim does not implicate the 5 fact or duration of Petitioner’s confinement, and thus, it is not cognizable under 6 Section 2241. Instead, Ground One must be raised by way of a Bivens complaint or 7 through some other form of civil action, rather than through a habeas petition 8 brought under Section 2241. 9 The Court may construe a flawed habeas petition as a civil rights complaint. 10 See Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Converting Ground One of 11 the Petition to a Bivens complaint would be improper, however, given that: (1) the 12 Petition was not accompanied by the $350 filing fee or a request to proceed without 13 prepayment of the full filing fee; (2) the Petition was not accompanied by an 14 authorization by Petitioner to have the $350 filing fee deducted from his trust 15 account pursuant to 28 U.S.C. § 1915(b)7; (3) based on Petitioner’s allegations and 16 the timing of the matters alleged, it appears likely that he has not exhausted his 17 administrative remedies for his Ground One claim, a prerequisite to filing a civil 18 rights action8; (4) and no viable Bivens claim or request for relief has been stated 19

20 7 Petitioner is a prisoner, and thus, 28 U.S.C. § 1915(b) requires him to pay “the full amount 21 of a filing fee,” although he may do so through and initial partial payment and monthly payments thereafter rather than prepaying the entire amount. 22 8 42 U.S.C. § 1997e(a) provides that: “No action shall be brought with respect to prison 23 conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any 24 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 25 offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). Moreover, even if Ground One properly had been brought under Section 2241 (which it has not), 26 habeas petitions under Section 2241 also have an exhaustion requirement. See, e.g., Ward v. 27 Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012); Laing v. Ashcroft, 370 F.3d 994, 997-98 (9th Cir. 2004). Given the nature of the Petition’s allegations, it is possible that the exhaustion requirement 28 could be found to be futile or excused, but the Court need not, and does not, decide that issue here. 1 2 In addition, if Ground One of the Petition were converted to a Bivens 3 complaint, Petitioner would be obligated to pay the $350 filing fee for a civil action, 4 either in full up front or through withdrawals from his prison trust account in 5 accordance with the availability of funds. See 28 U.S.C. § 1915(b). The dismissal 6 of this action at the pleading stage or otherwise would not end Petitioner’s 7 obligation to pay that $350 filing fee. Further, the Court would be obligated to 8 screen the converted Petition pursuant to the screening provisions of the Prisoner 9 Litigation Reform Act of 1995. See 28 U.S.C. § 1915A(b); 42 U.S.C. § 10 11 9 The Warden of Petitioner’s institution is the sole named Respondent, but the Petition does 12 not contain any allegations with respect to Respondent Warden, such as what he did or did not do, 13 much less identify what conduct by him violated the First Amendment or any other constitutional provision. Rather, as currently formulated and if converted, Ground One of the Petition would 14 constitute a noncognizable attempt to hold the Warden vicariously liable premised on the doctrine of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Crowley v. Bannister, 15 734 F.3d 967, 977 (9th Cir. 2013). But even if a proper defendant had been named for Bivens purposes, Ground One does not come close to stating a viable claim, because it is bereft of any 16 actual factual assertions. Petitioner alleges only generally that he doesn’t have enough time on the 17 telephone with Christian Science practitioners, but he does not allege any incident in which this actually has resulted in his inability to receive needed medical advice, preventing him from 18 attending to his medical needs, which thereby violated his right to the free exercise of his religion. See Iqbal, 556 U.S. at 678 (to be viable, a claim must contain sufficient factual matter to state a 19 claim for relief that is plausible on its face, and a “claim has factual plausibility when the plaintiff 20 pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”; it dos not do so if it contains merely “‘labels and conclusions’” 21 or “‘a formulaic recitation of the elements of a cause of action’” or “‘naked assertion[s]’ devoid of ‘further factual enhancement’”) (citation omitted). 22 In addition, the Bivens remedy is a limited one that, to date, has been approved by the 23 Supreme Court in only three instances; extending it to others is disfavored. See Ziglar v. Abbasi, 24 137 S. Ct. 1843, 1854-57 (2017). Only the portion of Ground One alleging denied or impaired medical care falls within the scope of one of the few permissible types of Bivens claims (i.e., an 25 Eighth Amendment claim); his First Amendment allegations do not. Further, the relief requested is injunctive in nature – immediate release from incarceration, so that Petitioner can utilize faith- 26 based treatment [Petition at 33] – which is not relief that is available pursuant to a Bivens claim. 27 See Ministerio Roca Solida v. McKelvey, 820 F.3d 1090, 1093-94 (9th Cir. 2016) (holding that “Bivens does not encompass injunctive and declaratory relief where, as here, the equitable relief 28 sought requires official government action” and that the only remedy available is monetary damages from a defendant in his or her individual capacity). 1 2 state a cognizable Bivens claim against the named Respondent or anyone else. If the 3 converted Petition ultimately were dismissed for failure to state a claim upon which 4 relief may be granted, that dismissal could count as a “strike” against Petitioner for 5 purposes of 28 U.S.C. § 1915(g), which provides that a prisoner who has three 6 “strikes” – i.e.,. prior actions dismissed on the grounds that they are frivolous, 7 malicious, or fail to state a claim upon which relief may be granted – may not bring 8 an action or appeal without prepayment of the full filing fee unless “the prisoner is 9 under imminent danger of serous physical injury.” 10 Thus, the Court believes it is appropriate to dismiss Ground One of the 11 Petition without prejudice. Petitioner then may determine whether or not he wishes 12 to raise the subject-matter of Ground One of the Petition through a Bivens (or other) 13 claim pleaded in a properly-submitted civil complaint. In making that decision, 14 Petitioner must take into account the administrative exhaustion requirement and 15 remember that he must either submit the $350 filing fee with his complaint or 16 submit the necessary 28 U.S.C. § 1915 documents and pay the $350 filing fee over 17 time if granted leave to do so. 18 19 III. To The Extent That Petitioner Is Seeking Relief Based On The COVID- 20 19 Pandemic, His Claim Is Not Cognizable In Habeas Review. 21 The Petition expressly pleads only the four claims alleged above. While the 22 Petition contains a number of allegations about Petitioner’s medical problems and 23 the heightened risk he faces from COVID-19 due to his alleged co-morbidities, as 24 well as his assertion that he therefore should be released, Petitioner does not actually 25 allege a claim based on the theory that his continued incarceration in the face of the 26 existence of the COVID-10 pandemic violates his constitutional rights, whether 27 under the Eighth Amendment or another provision. But even if he were afforded 28 leave to do so or if the Court were to liberally construe the extant Petition to 1 2 dismissal would be appropriate. 3 The question of whether prisoner actions asserting violations of their 4 constitutional rights based on the COVID-19 pandemic properly may sound in 5 habeas, versus civil rights, is an open one, with the case law in flux. The Ninth 6 Circuit has not squarely addressed this issue and, when most recently presented with 7 the question, declined to decide whether habeas review is available with respect to 8 claims that COVID-19 conditions at a penal institutional give rise to 9 unconstitutional conditions of confinement. See Roman v. Wolf, 977 F.3d 935, 941- 10 42 (9th Cir. 2020) (per curiam). District courts within, as well as outside, the Ninth 11 Circuit have split on whether such claims may be reviewed pursuant to habeas 12 jurisdiction. 13 A number of district courts within the Ninth Circuit have concluded that a 14 claim asserting that an inmate’s constitutional rights have been and/or are being 15 violated by the conditions of his confinement resulting from the COVID-19 16 pandemic is not cognizable in habeas review. For example, in Alvarez v. Larose, 17 445 F. Supp. 3d 861, 866 (S.D. Cal. 2020), appealed dismissed, 2020 WL 8374097 18 (9th Cir. Oct. 15, 2020), the district court denied a request for a temporary 19 restraining order brought by federal criminal detainees and convicted federal 20 defendants awaiting sentencing who sought Section 2241 relief based on the 21 asserted failure to implement adequate measures to protect them with respect to 22 COVID-19. The Court held that the claims challenging the conditions of 23 confinement within a federal institution given the COVID-19 pandemic were not 24 properly brought under Section 2241. The Court specifically rejected the 25 petitioners’ argument that because they sought release – a remedy traditionally 26 provided in habeas – they were entitled to proceed under Section 2241, reasoning 27 that this argument improperly conflated the nature of the relief sought with the 28 substance of the claim, which was to assert that conditions of confinement were 1 2 In a more recent decision from this District – Wilson v. Ponce, 465 F. Supp. 3 3d 1037, 1047-49 (C.D. Cal. 2020), appeal dismissed, 2020 WL 6293689 (9th Cir. 4 Oct. 19, 2020) – the Court collected cases from around the country finding habeas 5 jurisdiction to both exist and not exist, analyzed their reasoning, and concluded that 6 claims of this nature are not cognizable as habeas claims. The Court concluded that 7 Section 2241 does not give a district court jurisdiction over a claim that a federal 8 prisoner should be released due to the institutional conditions caused by the 9 COVID-19 pandemic, because this claim does not address the validity of the 10 prisoner’s confinement or the particulars affecting its duration as needed for habeas 11 jurisdiction to exist. In this same vein, see also, e.g., Macias, 2020 WL 6681250, at 12 *3 (dismissing habeas claim that petitioner’s continued confinement during the 13 COVID-19 pandemic jeopardized his health in violation of the Fifth and Eighth 14 Amendments and seeking home confinement as relief, finding that while the relief 15 sought was “within the ambit of habeas corpus,” the claim itself constituted a 16 challenge to the conditions of the petitioner’s confinement and was required to be 17 brought through a civil rights complaint, not a habeas petition); Jackson v. Von 18 Blanckensee, No. CV 20-4161 PA, 2020 WL 4905527, at *1 (C.D. Cal. Aug. 19, 19 2020) (habeas claim that the petitioner’s confinement violated the Eighth 20 Amendment due to his exposure to COVID-19 dismissed, because it should have 21 been brought as a civil rights claim); Sweeney, 2020 WL 4980062, at *2 (dismissing 22 Eighth Amendment claim brought under Section 2241 and seeking immediate 23 release based on COVID-19 conditions at prison, finding that this was a conditions 24 of confinement claim that should be raised through a civil rights complaint); Bolden 25 v. Ponce, No. 2:20-cv-03870-JFW, 2020 WL 2097751, at *2 (C.D. Cal. May 1, 26 2020) (Section 2241 challenge seeking immediate release on the basis that 27 petitioner’s life allegedly was endangered by his continued incarceration due to the 28 ongoing COVID-19 pandemic dismissed for lack of jurisdiction, because his claim 1 2 civil rights complaint, not in a habeas petition). 3 Other district courts have found that these types of COVID-19 conditions of 4 confinement claims are cognizable on habeas review. See, e.g., Torres v. Milusnic, 5 472 F. Supp. 3d 713, 724-26 (C.D. Cal. 2020) (collecting cases from across the 6 country and finding Section 2241 jurisdiction to exist when the petitioners’ claims 7 sought relief from COVID-19-related conditions at their institution by challenging 8 the “‘fact and duration of confinement on the basis that no set of conditions of 9 confinement under the present circumstances could be constitutional’”; reasoning 10 that such a claim challenges the “fact of confinement” for habeas purposes); Bent v. 11 Barr, No. 19-cv-6123-DMR, 2020 WL 3640009, at *2 (N.D. Cal. July 6, 2020) 12 (granting a preliminary injunction and finding habeas jurisdiction existed over claim 13 that challenged the validity of confinement in light of the COVID-19 pandemic). 14 see also Wilson v. Williams, 961 F.3d 829, 837-39 (6th Cir. 2020) (Eighth 15 amendment claim based on prison officials’ alleged failure to create safe conditions 16 for prisoners during the COVID-19 pandemic held to be “properly brought under § 17 2241 because they challenge the fact or extent of their confinement by seeking 18 release from custody,” finding dispositive that the petitioners claimed that “there are 19 no conditions of confinement sufficient to prevent irreparable constitutional injury” 20 and, thus, the only relief available was release from prison). 21 The Court finds the above-cited cases concluding that habeas jurisdiction is 22 not available to be more persuasive and applicable under the facts of this case. 23 Petitioner does not actually allege an Eighth Amendment or other claim based on 24 the fact of the COVID-19 pandemic and its effect on the conditions of confinement 25 at MDC. He does not allege anything with any specificity about how MDC is 26 dealing with the pandemic, other than to claim that “the BOP” and MDC are, as a 27 general matter, not competent to provide him with adequate medical care for his pre- 28 existing conditions regardless of the pandemic and that to put him in an isolation 1 2 legal materials, contact with his appellate attorney, and phone calls and this would 3 be “barbarous.” [Petition at 19, 26.] 4 The Petition’s allegations also do not establish that there are no conditions of 5 confinement that could not prevent constitutional violation. For example, if 6 Petitioner believes he is not receiving adequate medical care for his pre-existing 7 medical conditions, that type of claim is more properly handled in civil rights, in 8 which relief directed to that concern can be fashioned, including ordering that 9 certain types of care be provided. Similarly, while Ground One, although couched 10 as a First Amendment claim, can be read as a complaint about the quality of the 11 medical care Petitioner is receiving based on the restricted nature of Petitioner’s 12 telephone access due to restrictions imposed by the pandemic and otherwise, the 13 appropriate relief for that claim could be simply to require that, in light of 14 Petitioner’s Christian Science beliefs, he be afforded greater access to telephone 15 calls with Christian Science practitioners. In both instances, the appropriate relief 16 would not be release and would be relief that plainly could not be afforded in 17 habeas. See Douglas v. Jacquez, 626 F.3d 501, 504 (9th Cir. 2010) (“The power of 18 a federal habeas court ‘lies to enforce the right of personal liberty’ . . . [and as] such, 19 a habeas court ‘has the power to release’ a prisoner, but ‘has no other power.’”) 20 (citations omitted). Petitioner alleges, at most, that he had co-morbidities and that 21 he therefore is at greater risk of harm from COVID-19 as a general proposition and, 22 thus, the only relief available is immediate release. There is nothing alleged in the 23 Petition, however, to support finding that immediate release from an existing 24 conviction and sentence imposed by a different district court is the only relief 25 appropriate here. In any event, the fact that release is sought rather than some other 26 form of relief is not determinative of whether a claim sounds in habeas or civil 27 rights, i.e., the question of the nature of the claim itself. Alvarez, 445 F. Supp. 3d at 28 866. 1 The Court finds that, under the circumstances at issue and regardless of 2 || Petitioner’s assertion that he should be released from custody immediately, any 3 || arguable COVID-19 related claim raised through the Petition is not cognizable 4 || under Section 2241. See Shook v. Apker, 472 Fed. App’x 702, 702-03 (9th Cir. 5 || 2012) (holding that, “[d]espite the relief he seeks,” the petitioner’s challenges to the 6 || adequacy of medical care concerned “the conditions of his confinement and are 7 || properly brought under Bivens,” not through a Section 2241 habeas petition). 8 || Accordingly, to the extent that the Petition can be construed to plead a fifth habeas 9 || claim based on the conditions of Petitioner’s confinement at MDC due to the 10 || COVID-19 pandemic, that claim also should be dismissed without prejudice. 1 1 * * * * * 12 For the foregoing reasons, IT IS ORDERED that: the Petition is dismissed 13 || without prejudice; and Judgment shall be entered dismissing this action without 14 || prejudice 15 16 DATED: February 24, 2021 Dn

18 UNITED STATES DISTRICT JUDGE 19 20 21 22 PRESENTED BY: 23 24 { Wa | 25 || GAIL J. STANDISH 96 || UNITED STATES MAGISTRATE JUDGE 27 28 19