(HC) McVay v. Merlak

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 STEVEN MCVAY, Case No. 1:20-cv-00486-JDP 12 Petitioner, ORDER REQUIRING RESPONDENT TO RESPOND TO PETITIONER’S REQUEST 13 v. FOR A TEMPORARY RESTRAINING ORDER 14 STEVEN MERLAK, ORDER REGARDING CONVERSION OF 15 Respondent. PETITION FOR WRIT OF HABEAS CORPUS TO CIVIL RIGHTS ACTION 16 UNDER 42 U.S.C. § 1983 17 ECF No. 1 18 ORDER DIRECTING CLERK TO SEND PETITIONER § 1983 COMPLAINT FORM [20] 21 Petitioner Steven McVay, a federal prisoner without counsel, seeks a writ of habeas 22 corpus and a temporary restraining order under 28 U.S.C. § 2241 . ECF No. 1. This matter is 23 before us for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. See 24 R. Governing § 2254 Cases 4; 28 U.S.C. § 2243 . Under Rule 4, a district court must dismiss a 25 habeas petition if it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 26 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th [28] 1 Cir. 1998). Petitioner sole request for relief is a temporary restraining order against his prison to 2 prevent his transfer to a different prison facility. ECF No. 1. 3 Discussion 4 Petitioner states that the Taft Correctional Institution, where he is imprisoned, will be 5 closing on April 30, 2020. ECF No. 1 at 2. As a result, all prisoners at Taft were notified that 6 they will be moved to other prison facilities at that time and they will not be notified of their new 7 placement until they are in transit to that placement. Id. Petitioner bases his request on the 8 outbreak of the COVID-19 virus—he states that he is 71 years old, elderly and frail, and faces 9 potential death if exposed to the virus. Id. at 2, 3. Petitioner states that he is scheduled to be 10 released in August 2020 under the elderly offender program. Id. at 3. Petitioner states that there 11 are no known cases of COVID-19 at Taft, but that many of the potential placement prisons for 12 Taft inmates have staff and/or inmates infected with the virus. Therefore, petitioner requests that 13 we order his prison to refrain from transferring him to a different facility until either the COVID14 19 virus is contained or until he has finished serving his sentence. Id. at 4. 15 First, due to the time-sensitive nature of petitioner’s motion for a temporary restraining 16 order, we will order respondent to respond expeditiously to petitioner’s motion. Respondent 17 should respond within five days of the date of entry of this order and address both the merits of 18 the motion and any procedural issues that may bar relief. The response need not be lengthy. 19 Petitioner may have five days to file a reply, if any, after the response is filed. 20 Second, because petitioner’s habeas request for relief is limited to the conditions of his 21 confinement, we will require petitioner to notify us whether he would like to continue with his 22 action as filed or, rather, seek relief under 28 U.S.C. § 1983 . “Challenges to the validity of any 23 confinement or to particulars affecting its duration are the province of habeas corpus; requests for 24 relief turning on circumstances of confinement may be presented in a § 1983 action.” 25 Muhammad v. Close, 540 U.S. 749, 750 (2004); see Greenhill v. Lappin, 376 F. App’x 757 , 75726 58 (9th Cir. 2010) (holding that the appropriate remedy for a federal prisoner’s claim that relates 27 to the conditions of his confinement is a civil rights action under Bivens v. Six Unknown Named 28 Narcotics Agents, 403 U.S. 388 (1971)). Claims concerning various prison conditions brought 1 pursuant to § 2241 have been dismissed in this district for lack of subject matter jurisdiction with 2 indications that an action pursuant to Bivens is appropriate.1 3 Here, petitioner has neither claimed that he is in custody in violation of federal law, nor 4 that the duration of his sentence violates federal law. Rather, he seeks an order preventing his 5 transfer to another facility, which is a request turning on the circumstances of his confinement. 6 Therefore, habeas relief is not proper here. However, petitioner may seek relief by converting 7 this case from a petition for habeas corpus to a civil rights action under 28 U.S.C. § 1983 . 8 Petitioner may convert a habeas petition to a § 1983 complaint. See Nettles v. Grounds, [9] 830 F.3d 922, 936 (9th Cir. 2016) (“If the complaint is amenable to conversion on its face, 10 meaning that it names the correct defendants and seeks the correct relief, the court may 11 recharacterize the petition so long as it warns the pro se litigant of the consequences of the 12 conversion and provides an opportunity for the litigant to withdraw or amend his or her 13 complaint.”). Because petitioner is unrepresented, we must further warn him of the consequences 14 of conversion. See Nettles, 830 F.3d at 936 . Habeas corpus and prisoner civil rights actions 15 differ in a variety of respects, such as the proper defendants, filing fees, exhaustion requirements, 16 and restrictions on future filings (e.g., the Prison Litigation Reform Act’s three-strikes rule). 17 Nettles, 830 F.3d at 936 (citing Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir. 2011). If 18 petitioner chooses to convert the instant matter to a civil rights action, the filing fee for § 1983 19 civil rights cases is $350. Petitioner will be required to pay the full amount by way of deductions 20 from income to his trust account, even if he is granted in forma pauperis status. See 28 U.S.C. 21 § 915(b)(1).2 [22] 1 See, e.g., Burnette v. Smith, No. CIV S-08-2178 DAD P, 2009 U.S. Dist. LEXIS 20219 at *1 (E. 23 D. Cal. Mar. 13, 2009) (petitioner’s confinement in segregated unit for security purposes and prison’s refusal to transfer petitioner should be raised as Bivens action, not as § 2241 habeas [24] action); Evans v. U.S. Penitentiary, No. 1:07-CV-01611 OWW GSA HC, 2007 U.S. Dist. LEXIS 25 87181 , at *1 (E.D. Cal. Nov. 27, 2007) (petitioner is not entitled to habeas relief under § 2241 because his claims regarding a recent transfer and inadequate medical care concern conditions of 26 his confinement); Blow v. Bureau of Prisons, No. 1:07-CV-01119 OWW NEW (DLB) HC, 2007 U.S. Dist. LEXIS 60881 , at *1 (E.D. Cal. Aug. 20, 2007) (habeas relief under § 2241 does not 27 extend to petitioner’s requests for transfer to another facility because it concerns conditions of his confinement). 28 2 The court notes that petitioner has not been authorized to proceed in forma pauperis in this case. 1 If petitioner wishes to convert his petition to a § 1983 complaint, he may wish to amend 2 his petition so that he may more thoroughly explain his § 1983 claim. The Eighth Amendment’s 3 prohibition of cruel and unusual punishment requires that prison officials take reasonable 4 measures for the safety of inmates. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). A prison 5 official violates the Eighth Amendment when two requirements are met: (1) the deprivation 6 alleged is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately 7 indifferent to the inmate’s safety. See id. 8 To satisfy the first prong, the inmate must show that he is incarcerated under conditions 9 posing a substantial risk of serious harm. See id. “The Constitution ‘does not mandate 10 comfortable prisons.’” Id. at 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337 , 349 11 (1981)). To satisfy the second prong, the official must know of and disregard an excessive risk to 12 inmate safety. See Farmer, 511 U.S. at 837 . The official must both be aware of facts from which 13 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 14 the inference. See id. 15 Should petitioner choose to amend the complaint, the amended complaint should be brief, 16 Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of 17 petitioner’s constitutional or other federal rights. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); 18 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Petitioner must set forth “sufficient factual 19 matter . . . to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting 20 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). There is no respondeat superior 21 liability, and each defendant is only liable for his or her own misconduct. See id. at 677 . 22 Petitioner must allege that each defendant personally participated in the deprivation of his rights. 23 Jones, 297 F.3d at 934 (emphasis added). Petitioner should note that a short, concise statement of 24 the allegations in chronological order will assist the court in identifying his claims. Petitioner 25 should name each defendant and explain what happened, describing personal acts by the 26 individual defendant that resulted in the violation of petitioner’s rights. Petitioner should also 27 describe any harm he suffered from the violation of his rights. 28 Any amended complaint will supersede the original pleading, Lacey v. Maricopa County, 1 | 693 F. 3d 896 , 907 n.1 (9th Cir. 2012) (en banc), and it must be complete on its face without 2 | reference to the prior, superseded pleading, see E.D. Cal. Local Rule 220. Once an amended 3 | complaint is filed, the original pleading no longer serves any function in the case. Therefore, in 4 | an amended complaint, as in an original pleading, each claim and the involvement of each 5 | defendant must be sufficiently alleged. The amended complaint should be titled “First Amended 6 | Complaint,” refer to the appropriate case number, and be an original signed under penalty of 7 | perjury. 8 Petitioner also may, at his option, voluntarily dismiss his habeas petition without prejudice 9 | to refiling his claims as a § 1983 civil rights action. If petitioner does not wish to convert his case 10 | or voluntarily dismiss his petition, his case will be subject to dismissal for lack of jurisdiction. 11 | Petitioner must respond to this order within ten days indicating whether he consents to 12 | conversion, wishes to voluntarily dismiss his petition, or intends to proceed with his original 13 | pleading. 14 | Order 15 1. Within five days of the date of service of this order, respondent is required to respond 16 | to petitioner’s request for a temporary restraining order. ECF No. 1. Petitioner may file a reply 17 || within five days of respondent’s response. 18 2. Within ten days of the date of service of this order, petitioner is required to notify this 19 | court whether he wishes to proceed with his petition as filed, voluntarily dismiss his petition, or 20 || convert his case to seek relief under § 1983. 21 3. The clerk of court is directed to send petitioner a § 1983 form. [22] 73 IT IS SO ORDERED. 24 ( Waban Dated: _ April 8, 2020 25 UNIT#D STATES MAGISTRATE JUDGE [26] 27 | No. 206.