(HC) Buensalida v. Warden Lake ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFRED BUENSALIDA, Case No. 1:19-cv-01347-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT PETITION BE DISMISSED FOR 13 v. LACK OF JURISDICTION 14 WARDEN LAKE, ECF No. 1 15 Respondent. OBJECTIONS DUE IN FOURTEEN DAYS 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE AND 17 SEND PETITIONER A § 1983 COMPLAINT FORM 18 19 Petitioner Alfred Buensalida, a federal prisoner without counsel, petitioned for a writ of 20 habeas corpus under 28 U.S.C. § 2241. ECF No. 1. This matter is before the court for 21 preliminary review. Under Rule 4 of the Rules Governing Section 2254 Cases, we must examine 22 the habeas corpus petition and order a response to the petition unless it “plainly appears” that the 23 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 24 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). At this early stage, Rule 4 gives “courts 25 an active role in summarily disposing of facially defective habeas petitions.” Ross v. Williams, 26 896 F.3d 958, 968 (9th Cir. 2018) (citation omitted). 27 28 1 Discussion 2 A challenge to the manner of execution of a federal criminal sentence is properly filed in a 3 § 2241 petition. See Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). In contrast, 4 “[r]equests for relief turning on circumstances of confinement may be presented in a [42 U.S.C.] 5 § 1983 action.” Muhammad v. Close, 540 U.S. 749, 750 (2004). Here, petitioner claims that the 6 circumstances of his confinement violate his right to proper medical care; he does not challenge 7 the manner of execution of his sentence. He alleges that the prison did not provide him adequate 8 medical care for his withering left hand; he would like the prison to provide this court with a 9 report listing the actions taken to treat his hand. ECF No. 1 at 3. Because petitioner’s claim and 10 request are not cognizable under § 2241, we recommend that they be dismissed for lack of 11 jurisdiction. 12 We next consider whether to convert the petition into a § 1983 complaint. “If the 13 complaint is amenable to conversion on its face, meaning that it names the correct defendants and 14 seeks the correct relief, the court may recharacterize the petition so long as it warns the pro se 15 litigant of the consequences of the conversion and provides an opportunity for the litigant to 16 withdraw or amend his or her complaint.” Nettles, 830 F.3d at 936 (remanding case to district 17 court to consider claim under § 1983). When filing a § 1983 claim, courts require plaintiffs to 18 “plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights 19 secured by the Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 20 (9th Cir. 1986). A person deprives another of a constitutional right, “within the meaning of 21 § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform 22 an act which he is legally required to do that causes the deprivation of which complaint is made.’” 23 Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 24 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). There is no respondeat superior liability— 25 i.e., liability of a supervisor for acts of a supervisee. Each defendant is only liable for his or her 26 own misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009). 27 We decline to convert the petition into a § 1983 complaint for two reasons. First, the 28 complaint is not amenable to conversion on its face. Petitioner’s allegations about the prison 1 conditions are too conclusory to state a § 1983 claim. Petitioner has named only the warden as 2 the respondent; petitioner has not named the people who directly committed the affirmative acts 3 or omissions that violated his rights. Second, conversion may be unfair to petitioner. The filing 4 fee for a habeas corpus petition is $5—and if leave to proceed in forma pauperis is granted, the 5 fee is forgiven. For civil rights cases, however, the filing fee is $350 plus a $50 administrative 6 fee. Under the Prisoner Litigation Reform Act, petitioner would be required to pay the $350 7 filing fee, even if granted in forma pauperis status, by way of deductions from his trust account. 8 See 28 U.S.C. § 1915(b)(1). If we were to convert this action to a § 1983 action, petitioner would 9 face the larger filing and administrative fees—and with this in mind he might prefer not to file. 10 While we decline to convert the petition, petitioner remains free to file a § 1983 11 complaint. A complaint must contain a short and plain statement that plaintiff is entitled to relief, 12 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 13 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 14 require detailed allegations, but legal conclusions do not suffice. See Iqbal, 556 at 678. If the 15 allegations “do not permit the court to infer more than the mere possibility of misconduct,” the 16 complaint states no claim. Id. at 679. The complaint need not identify “a precise legal theory.” 17 Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016). Instead, what 18 plaintiff must state is a “claim”—a set of “allegations that give rise to an enforceable right to 19 relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc) 20 (citations omitted). The complaint must state what actions each named defendant took that 21 deprived plaintiff of constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. 22 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 23 Order 24 The clerk’s office is directed to send petitioner a § 1983 complaint form. The clerk of 25 court is directed to assign this case to a district judge who will review the findings and 26 recommendations. 27 28 1 | Findings and Recommendations 2 We recommend that the court dismiss the petition and decline to issue a certificate of 3 | appealability. Under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for 4 | the United States District Court, Eastern District of California, we submit the findings and 5 || recommendations to the U.S. District Court judge presiding over the case. Within fourteen days 6 | of the service of the findings and recommendations, any party may file written objections to the 7 | findings and recommendations. That document must be captioned “Objections to Magistrate 8 | Judge’s Findings and Recommendations.” The presiding district judge will then review the 9 | findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 10 Wl IT IS SO ORDERED. 12 ( Waban Dated: _ February 9, 2020 13 UNIT#D STATES MAGISTRATE JUDGE 14 IS | No. 206. 16 17 18 19 20 21 22 23 24 25 26 27 28