(HC) Gelazela v. White

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 MARK GELAZELA, Case No. 1:21-cv-00002-HBK 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR FAILURE TO 13 v. STATE COGNIZABLE CLAIMS AND FAILURE TO EXHAUST CLAIMS1 14 DOUGLAS WHITE, OBJECTIONS DUE IN THIRTY DAYS 15 Respondent. (Doc. No. 1) — 16 — ORDER DIRECTING CLERK OF COURT TO 17 ASSIGN CASE TO DISTRICT JUDGE AND PROVIDE PETITIONER BIVENS CIVIL 18 RIGHTS COMPLAINT FORM — 19 — — 20 — 21 Petitioner Mark Gelazela, a federal prisoner, has pending a pro se petition for writ of 22 habeas corpus under 28 U.S.C. § 2241 . (Doc. No. 1). The petition is before the court for 23 preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the 24 judge assigned to the habeas proceeding must examine the habeas petition and order a response to 25 the petition unless 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 — 27 — 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2019). 1 Cir. 1998). Courts have “an active role in summarily disposing of facially defective habeas 2 petitions” under Rule 4. Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation omitted). 3 I. BACKGROUND 4 Petitioner initiated this case on January 4, 2021 by filing the instant petition while 5 incarcerated at Federal Correctional Institution, Mendota Camp, which is within the venue and 6 jurisdiction of this court. (Doc. No. 1). Petitioner designates his petition an “Emergency.”2 (Id. 7 at 1). Petitioner is serving a 41-month prison sentence for his September 15, 2016 conviction, 8 after a jury trial, for wire fraud entered by the U.S. District Court for the Central District of 9 California. (Id. at 2). The gravamen of his petition it that the conditions of petitioner’s 10 confinement are unconstitutional. (See generally id.) Specifically, in Ground One, petitioner 11 alleges the Bureau of Prisons (“BOP”) is denying him “emergency, critical medical care”3 for his 12 injured knee. (Id. at 9-10). In Ground Two, petitioner claims he is being subjected to 13 “unconstitutional imprisonment conditions” stemming from the FCI Medota’s failure to follow 14 the Center for Disease Control’s COVID-19 safety protocols. (Id. at 11-12). As relief, petitioner 15 seeks release to home confinement for the alleged unconstitutional conditions of his confinement 16 under the Coronavirus Aid Relief and Economic Security (“CARES”) Act and the First Step Act. 17 (Id. at 13). 18 II. APPLICABLE LAW AND ANALYSIS 19 a. Non-Cognizable Claims 20 i. Conditions of Confinement Claims 21 The Supreme Court, while not foreclosing habeas relief for a conditions of confinement 22 claim, to date, has refused to recognize it as a proper vehicle to obtain such relief. Bell v. Wolfish, — 23 — 441 U.S. 520 , 526 n. 6 (1979) (“thus, we leave to another day the question of the propriety of 24 using a writ of habeas corpus top obtain review of the conditions of confinement, as distinct from 25 the fact or length of the confinement itself.”). Instead, claims centered on conditions of a federal — 26 — 2 The court reviewed the petition upon receipt and determined it did not warrant emergency handling. 27 3 Because the petition contained allegations of imminent physical harm, the court directed the clerk to provide a copy of petitioner’s petition to officials at FCI Medota, for handling as they 28 deemed appropriate. (See Doc. No. 10). 1 prisoner’s confinement are appropriately pursued in a Bivens civil rights action—not a habeas 2 action. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (recognizing a 3 cause of action against the federal government for civil rights violations). The Supreme Court 4 made clear that a claim is cognizable on federal habeas corpus review when a prisoner challenges 5 “the fact or duration of his confinement” and “seeks either immediate release from that 6 confinement or the shortening of its duration.” See Preiser v. Rodriguez, 411 U.S. 475 , 489 7 (1973). In contrast, claims stemming from the conditions of confinement should be brought in a 8 civil rights action. Id. at 484-86 ; see also Nettles v. Grounds, 830 F.3d 922, 933 (9th Cir. 2016) 9 (citing Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979)) (explaining that the Ninth Circuit 10 has “long held that prisoners may not challenge mere conditions of confinement 11 in habeas corpus”); Badea v. Cox, 931 F.3d 573, 574 (9th Cir. 1991) (“A civil rights action . . . is 12 the proper method of challenging conditions of confinement.”). 13 Thus, the undersigned finds release under § 2241 unavailing for the alleged constitutional 14 violations predicated upon petitioner’s alleged conditions of confinement. See Shook v. Apker, 15 472 F. App’x. 702, 702-03 (9th Cir. 2012) (holding that district court did not err in treating 16 conditions of confinement claims as arising under Bivens, rather than § 2241); Alcala v. Rios, 434 17 F. App’x 668 , 669-70 (9th Cir. 2011) (holding that district court did not err in finding that 18 conditions of confinement claims are not cognizable under § 2241). 19 Further, although a court may convert a habeas petition to a civil rights complaint, the 20 undersigned does not find recharacterization proper in this case. “If the complaint is amenable to 21 conversion on its face, meaning that it names the correct defendants and seeks the correct relief, 22 the court may recharacterize the petition . . ..” Nettles, 830 F.3d at 936 (quoting Glaus v. 23 Anderson, 408 F.3d 382 , 388 (7th Cir. 2005)). Petitioner here names only the warden as the sole 24 respondent; petitioner does not name the people who allegedly committed the affirmative acts or 25 omissions that violated his rights. Moreover, petitioner does not seek relief that would be 26 appropriate for a civil rights complaint, i.e., money damages. See Solida v. McKelvey, 820 F.3d 27 1090, 1094, 1093 (9th Cir. 2016) (“[M]oney damages is the remedy under Bivens,” and Bivens 28 “does not encompass injunctive and declaratory relief where . . . the equitable relief sought 1 requires official government action.”). As a courtesy, the court will direct the clerk of court to 2 provide petitioner with a civil rights complaint form should he wish to pursue a Bivens claim in a 3 separate, properly filed action. 4 ii. Request for Home Confinement 5 Finally, to the extent petitioner seeks early release to home confinement under the First 6 Step Act, the CARES Act, or compassionate release pursuant to 18 U.S.C. § 3582 (c)(1)(A), these 7 claims are not cognizable on federal habeas review. The First Step Act directs BOP to “ensure 8 that a prisoner serving a term of imprisonment spends a portion of the final months of that term . . 9 . under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare 10 for the reentry of that prisoner into the community,” including, to the extent practicable, home 11 confinement. 18 U.S.C. § 3624 (c)(1)-(2). BOP is given discretion over an inmate’s location of 12 confinement. See Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). The Ninth Circuit has 13 held that this discretion may not be challenged via a § 2241 petition. Id.; see also Mohsen v. 14 Graber, 583 F. App’x 841, 842 (9th Cir. 2014) (holding a district court lacked jurisdiction to 15 consider a First Step Act claim in a § 2241 petition); Cruz v. Jenkins, No. 20-CV-03891-LHK, — 16 — 2020 U.S. Dist. LEXIS 218205 , at *6 (N.D. Cal. 2020) ([The First Step Act] gives the BOP 17 discretion over the location of confinement, and the Ninth Circuit has repeatedly held that this 18 discretion may not be challenged via a Section 2241 petition). Accordingly, petitioner’s First 19 Step Act claim should be dismissed. 20 For that same reason, this court cannot grant federal habeas relief based on the CARES 21 Act. The CARES Act allows BOP to “lengthen the maximum amount of time for which the 22 Director is authorized to place a prisoner in home confinement under [ 18 U.S.C. § 3624 (c)(2)], as 23 the Director determines appropriate.” CARES Act, Pub. L. No. 116-136, § 12003 (b)(2) (2020). 24 Thus, BOP’s determination as to the amount of time in which an inmate is placed in home 25 confinement is under BOP’s discretion and outside the scope of a § 2241 petition. See Cruz v. 26 Jenkins, No. 20-CV-03891-LHK, 2020 U.S. Dist. LEXIS 218205 , at *5-9 (C.D. Cal. Nov. 20, 27 2020). — 28 — 1 To the extent Petitioner seeks compassionate release pursuant to 18 U.S.C. § 2 3582(c)(1)(A), such a motion must be brought before the petitioner’s sentencing court—here the 3 U.S. District Court for the Central District of California. (See Doc. No. 1 at 2); 18 U.S.C. 4 § 3582(c)(1)(A); Bolden v. Ponce, No. 2:20-cv-03870-JFW-MAA, 2020 U.S. Dist. LEXIS 77249 , 5 at *2 (C.D. Cal. May 1, 2020) (explaining that “[o]nly the original sentencing court can entertain” 6 requests for compassionate release under 18 U.S.C. § 3582 (c)(1)(A) and that a habeas petitioner 7 “may not short-circuit this requirement to file in the sentencing district by petitioning for such 8 relief pursuant to Section 2241 in the custodial district”); see also United States v. Ono, 72 F.3d 9 101, 102 (9th Cir. 1995) (explaining that a motion under § 3582(c) “is undoubtedly a step in the 10 criminal case” that “requires the [sentencing] court to reexamine the original sentence”). 11 Therefore, none of petitioner’s claims seeking release to home confinement are cognizable on 12 federal habeas review and these claims should be dismissed. 13 b. Failure to Exhaust Claims 14 Alternatively, the court may dismiss the petition because none of the claims appear to 15 have been exhausted. Federal courts “require as a prudential matter that habeas petitioners 16 exhaust available judicial and administrative remedies before seeking relief under § 2241.” 17 Castro-Cortez v. INS, 239 F.3d 1037 , 1047 (9th Cir. 2001) (abrogated on another ground 18 by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006)). The BOP has established a multi-level 19 review process for administrative grievances. See 28 C.F.R. §§ 542.10-542.16 . First, “[i]nmates 20 shall informally present their complaints to staff, and staff shall attempt to informally resolve any 21 issue before an inmate files a Request for Administrative Remedy.” Id. at § 542.13(a). 22 Second, “an inmate who is not satisfied with the Warden’s response [to the informal complaint] 23 may submit an Appeal . . . to the appropriate Regional Director. . ..” Id., at § 542.15(a). Third, 24 “an inmate who is not satisfied with the Regional Director’s response may submit an Appeal . . . 25 to the General Counsel. . .. Appeal to the General Counsel is the final administrative appeal.” Id. 26 Although petitioner states that he has raised his complaint to the second level of 27 administrative appeal (Doc. No. 1 at 3) the petition and documents attached to the petition 28 indicate otherwise. Petitioner admits that both his administrative grievances were submitted only 1 | tothe warden, meaning that both grievances were first level attempts to informally resolve his 2 | claims with prison staff. (Ud.); see 28 C.F.R. § 542.13 (a). Moreover, petitioner submits copies of 3 || two grievance forms titled “Inmate Request to Staff,” both of which were submitted to the warden 4 | to informally resolve his complaints. (Doc. No. | at 17, 25). Accordingly, the record reflects 5 || petitioner has neither submitted an appeal to BOP’s regional director, nor BOP’s general counsel, 6 | as required to exhaust his administrative remedies. Therefore, even if any of the claims were 7 | cognizable, not conceded, the claims nonetheless would be subject to dismissal as unexhausted. 8 Accordingly, it is ORDERED: 9 1. The Clerk of Court is directed to assign this case to a district judge. 10 2. The Clerk of Court is directed to provide petitioner with a blank civil rights complaint 11 form. 12 Further, it is RECOMMENDED that the petition (Doc. No. 1) be DISMISSED. 13 NOTICE TO PARTIES 14 These findings and recommendations will be submitted to the United States district judge 15 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1). Within thirty (30) 16 | days after being served with these findings and recommendations, a party may file written 17 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 | Findings and Recommendations.” Parties are advised that failure to file objections within the 19 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834 , 20 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). — 21 — IT IS SO ORDERED. — 23 — Dated: _ May 26,2021 Mihaw. Wh. foareh fackte 24 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE — 26 — — 27 — — 28 —