1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COREY R. RYLAND, No. 1:23-cv-01171-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT

TO ASSIGN DISTRICT JUDGE

13 v.

FINDINGS AND RECOMMENDATIONS

14 DIRECTOR OF BUREAU OF PRISONS, TO DISMISS PETITION FOR WRIT OF

HABEAS CORPUS

15 Respondent. [TWENTY-ONE DAY DEADLINE] 16

17 18 On August 7, 2023, Petitioner filed the instant petition for writ of habeas corpus. He 19 states he suffered cruel and unusual punishment on or about August 2, 2023, when prison staff 20 used excessive force and beat Petitioner while he was in restraints. He is seeking compensation 21 of $20,000 for pain and suffering. The Court finds that Petitioner fails to establish grounds for 22 habeas corpus relief, and that the proper avenue for his complaints is a Bivens action pursuant to 23 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 24 Accordingly, the Court will recommend that the petition be DISMISSED without prejudice to 25 filing a Bivens action. 26 DISCUSSION 27 In this action, Petitioner is challenging the conditions of his confinement. Petitioner is 28 advised that a civil rights action, not a habeas corpus proceeding, is the proper mechanism for a 1 prisoner seeking to challenge the conditions of his confinement. See Bivens v. Six Unknown 2 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Crawford v. Bell, 599 F.2d 3 890, 891-892 (9th Cir. 1979) (upholding dismissal of petition challenging conditions of 4 confinement, the Ninth Circuit noted that “the writ of habeas corpus is limited to attacks upon the 5 legality or duration of confinement.”); see, e.g., Blow v. Bureau of Prisons, 2007 WL 2403561 at 6 *1 (E.D.Cal. Aug. 20, 2007) (habeas relief under § 2241 does not extend to petitioner’s request 7 for access to law library because it concerns conditions of his confinement); Boyce v. Ashcroft, 8 251 F.3d 911, 914 (10th Cir. 2001), vacated on other grounds by Boyce v. Ashcroft, 268 F.3d 9 953 (10th Cir. 2001)(“[P]risoners . . . who raise constitutional challenges to other prison 10 decisions-including transfers to administrative segregation, exclusion from prison programs, or 11 suspension of privileges, e.g., conditions of confinement, must proceed under Section 1983 or 12 Bivens.”). Accordingly, Petitioner is not entitled to habeas corpus relief under § 2241 and this 13 action should be dismissed without prejudice to his filing a Bivens civil rights action. 14 In Nettles v. Grounds, the Ninth Circuit held that a district court has the discretion to 15 construe a habeas petition by a state prisoner as a civil rights action under § 1983. Nettles v. 16 Grounds, 830 F.3d 922, 936 (9th Cir. 2016). Recharacterization is appropriate only if it is 17 “amenable to conversion on its face, meaning that it names the correct defendants and seeks the 18 correct relief,” and only after the petitioner is warned of the consequences of conversion and is 19 provided an opportunity to withdraw or amend the petition. Id. However, the Ninth Circuit 20 ruling in Nettles concerned state prisoners and was not extended to federal prisoners. But even 21 assuming Nettles can be extended to federal prisoners, the Court does not find recharacterization 22 to be appropriate because the instant petition is not amenable to conversion on its face. 23 Accordingly, the Court should not exercise its discretion to recharacterize the action. The Court 24 will recommend that the Clerk of Court provide blank forms for filing a Bivens action. 25 ORDER 26 IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a district judge 27 to this case. 28 1 RECOMMENDATION 2 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 3 DISMISSED without prejudice to Petitioner commencing a Bivens action, and the Clerk of Court 4 be DIRECTED to provide Petitioner with blank forms for filing a Bivens action. 5 This Findings and Recommendations is submitted to the United States District Court 6 Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 7 of the Local Rules of Practice for the United States District Court, Eastern District of California. 8 Within twenty-one days after being served with a copy of this Findings and Recommendations, 9 Petitioner may file written objections with the Court. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations. The Court will then review 11 the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that 12 failure to file objections within the specified time may waive the right to appeal the Order of the 13 District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14

IT IS SO ORDERED.

15

16 Dated: August 9, 2023 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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