Germain v. Jusino

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] CHARITY N. GERMAIN, 11 Case No. 23-cv-03441 BLF (PR) Petitioner, 12 ORDER DISMISSING PETITION v. FOR WRIT OF HABEAS CORPUS [13] 14 JUSINO, Warden, 15 Respondent. [17] 18 On August 11, 2023, Petitioner, a federal prisoner, filed in pro se a petition for writ 19 of habeas corpus under 28 U.S.C. § 2241 , challenging the “execution of her sentence” at 20 FCI-Dublin. Dkt. No. 1 at 2. It appears that Petitioner paid the filing fee. See Dkt. No. 5. [21] 22 DISCUSSION 23 A. Standard of Review 24 Review of the execution of a federal sentence is properly brought as a petition under [25] 28 U.S.C. § 2241 . See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) 26 (presentence time credit claim); see also Hernandez v. Campbell, 204 F.3d 861, 864 (9th 27 Cir. 2000) (“petitions that challenge the manner, location, or conditions of a sentence’s 1 entertain a petition for writ of habeas corpus from a person “in custody in violation of the 2 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241 (c)(3). 3 The court shall “award the writ or issue an order directing the respondent to show 4 cause why the writ should not be granted, unless it appears from the application that the 5 applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243 . Summary dismissal 6 is appropriate only where the allegations in the petition are vague or conclusory, palpably 7 incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490 , 491 8 (9th Cir. 1990). 9 B. Legal Claims 10 Petitioner seeks a transfer out of the custody of the Federal Bureau of Prisons 11 (“FOP”) to a halfway house or home confinement as well as adequate medical treatment. 12 Dkt. No. 1 at 1. She alleges that the “combin[ed] stress of psychological intimidation with 13 environmental conditions” (toxic mold and friable asbestos) which are harmful to her 14 respiratory system requires such a remedy. Id. Petitioner describes living in fear due to 15 the sexual abuse and hostile climate at the prison as well her exposure to the dangerous 16 environmental conditions. Id. Petitioner claims that the Court has jurisdiction under § 17 2241 because she is challenging the “execution of her sentence, which is affected by the 18 unhealthy environmental conditions of confinement.” Id. at 2. Petitioner asserts that her 19 rights under the Eighth Amendment are implicated and that a “quantum change in the level 20 of custody” is warranted under Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991). Id. 21 at 3. 22 Petitioner is essentially challenging the conditions of her confinement and asserting 23 that release to something akin to parole is the only available remedy. The Ninth Circuit 24 recently addressed a similar challenge by federal prisoners in Pinson v. Carvajal, 69 F.4th 25 1059 (9th Cir. 2023), who also filed habeas petitions under § 2241, claiming that prison 26 officials violated their constitutional rights by failing to provide adequate conditions of 1 thorough review of the history of habeas and concluded that in determining whether a 2 claim goes to the core of habeas, “the relevant question is whether, based on the 3 allegations in the petition, release is legally required irrespective of the relief requested.” 4 Id. at 1072. Consistent with Supreme Court precedent, the Ninth Circuit rejected 5 plaintiffs’ arguments that § 2241 was the proper avenue because there were other available 6 remedies and their claims lay outside the historic core of habeas corpus. Id. at 1062, 10747 75. The Ninth Circuit affirmed the district court’s dismissal of the habeas petitions for 8 lack of jurisdiction. Id. at 1076. 9 Similarly, Petitioner’s claims also do not lie at the core of habeas because she does 10 not directly challenge the constitutionality of her physical confinement (i.e., the detention 11 itself is without legal authorization) or seek either immediate release from that 12 confinement or the shortening of its duration. See Preiser v. Rodriguez, 411 U.S. 475 , 439 13 (1973). Nowhere in the petition does Petitioner challenge the legality of her underlying 14 conviction, nor does she seek a shortening of her sentence. Rather, similar to the § 2241 15 petitioners in Pinson, she is seeking release because she believes her continued 16 confinement at FCI-Dublin is unconstitutional. Furthermore, Petitioner’s reliance on 17 Graham v. Broglin, 922 F.2d 379 (7th Cir. 1991), is inapposite, as that action involved a 18 state prisoner filing 28 U.S.C. § 2254 petition to obtain work release.1 Accordingly, 19 Petitioner must raise her challenges to the conditions of confinement at FCI-Dublin in a 20 federal civil rights action. See Shook v. Apker, 472 F. App’x 702, 702-03 (9th Cir. 2012); 21 Badea v. Cox, 931 F.2d 573, 574 (9th Cir, 1991) (habeas corpus action proper mechanism 22 for challenging an unlawful conviction or sentence; civil rights action proper method for 23 challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890 , 891-92 & n.1 (9th 24 Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and [26] 1 The Seventh Circuit addressed whether habeas or civil rights was the right vehicle for 1 conditions of confinement must be brought in civil rights complaint). This action will be 2 dismissed without prejudice to Petitioner filing a federal civil rights action. 3 The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide 4 that “[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 5 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other 6 correctional facility until such administrative remedies as are available are exhausted.” 42 7 U.S.C. § 1997e(a). Thus, federal prisoners suing under Bivens v. Six Unknown Fed. 8 Narcotics Agents, 403 U.S. 388 (1971), must first exhaust inmate grievance procedures. 9 See Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (holding that revised § 1997e(a) applies 10 to Bivens actions). A federal prisoner may seek formal review of an issue that relates to 11 any aspect of his imprisonment under 28 C.F.R. § 542.10 . The procedure requires that the 12 prisoner first address his complaint to the institution staff. See 28 C.F.R. § 542.14 (c)(4) 13 (1997), Form BP-9. If dissatisfied with the response at that level, the inmate may appeal 14 his complaint to the regional Director of the Bureau of Prisons (“BOP”). See id. § 15 542.15(a), Form BP-10. Finally, the prisoner may appeal his case to the General Counsel 16 in the Central Office of the BOP, which is the “final administrative appeal.” See id., Form 17 BP-11. Accordingly, Petitioner is advised that she must have exhausted all her 18 administrative remedies with respect to any claims before she raises them in a federal civil 19 rights action in this Court. [20] 21 CONCLUSION 22 For the foregoing reasons, this federal habeas corpus action is DISMISSED for 23 lack of habeas jurisdiction. Petitioner’s claims regarding conditions of confinement at 24 FCI-Dublin are DISMISSED without prejudice to filing a civil rights action after Petitioner 25 has exhausted her administrative remedies. In light of this dismissal, Petitioner’s motion 26 for appointment of counsel is DENIED as moot. Dkt. No. 1 at 3. 1 IT IS SO ORDERED. 2 || Dated: _— November 9, 2023 fcuinihacnan _ BETH LABSON FREEMAN 3 United States District Judge [14] o [16] Z 18 [24] 2 5 Order of Dismissal PRO-SE\BLF\HC.23\0344 1 Germain.224 1dism