(HC) Kokolios v. Diaz ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GEORGE JOHN KOKOLIOS, No. 2:20-cv-0933-EFB P 11 Petitioner, 12 v. ORDER 13 RALPH DIAZ, 14 Respondent. 15 16 Petitioner, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 17 He has also filed a petition to proceed in forma pauperis. ECF No. 2. 18 Application to Proceed in Forma Pauperis 19 The court has reviewed petitioner’s application (and separate prison trust fund account 20 (ECF No. 4)) and determined that it makes the proper showing. Accordingly, petitioner’s request 21 for leave to proceed in forma pauperis is granted. 22 Screening 23 I. Legal Standards 24 The court must dismiss a habeas petition or portion thereof if the prisoner raises claims 25 that are legally “frivolous or malicious” or fail to state a basis on which habeas relief may be 26 granted. 28 U.S.C. § 1915A(b)(1),(2). The court must dismiss a habeas petition “[i]f it plainly 27 appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]” 28 Rule 4, Rules Governing Section 2254 Cases. 1 II. Analysis 2 Petitioner does not challenge the legality of his underlying conviction. Instead, he argues 3 that exigent circumstances – namely the current national outbreak of the corona virus (COVID- 4 19) – renders his continued incarceration so dangerous that it violates his constitutional rights. 5 ECF No. 1 at 3-4. 6 As an initial matter, it is unclear whether this claim may proceed in a federal habeas 7 petition. Some courts have determined that, insofar as it implicates the conditions of confinement 8 rather than the legality of the underlying conviction, a section 1983 suit is the more appropriate 9 vehicle. See, e.g., Phea v. Pfeiffer, No. 2:20-cv-00283 WBS GGH P, 2020 U.S. Dist. LEXIS 10 67150, *3 (E.D. Cal. Apr. 16, 2020) (“Although petitioner’s request argues the current prison 11 conditions expose him to a higher risk of harm due to potential exposure to COVID-19, 12 petitioner’s request relates to the conditions of petitioner’s confinement and accordingly is more 13 appropriately brought pursuant to 42 U.S.C. § 1983.”); Drakos v. Gonzalez, NO. H-20-1505, 14 2020 U.S. Dist. LEXIS 76900, *2 (S.D. Tex. May 1, 2020) (“Drakos does not challenge the fact 15 or duration of his confinement. While he requests injunctive relief ordering his release, his attack 16 is on the conditions of his confinement, not on the fact that he was ordered detained before trial 17 . . . . Therefore, the relief Drakos seeks is not available in habeas corpus.”). Other courts have 18 determined that the question is less straightforward, however. See, e.g., Money v. Pritzker, Nos. 19 20-cv-2093 & 20-cv-2094, 2020 U.S. Dist. LEXIS 63599, *26 (N.D. Ill. Apr. 10, 2020) 20 (Discussing a similar COVID-19 related claim and finding that “[t]he upshot of the foregoing 21 analysis is that it is abundantly clear that Plaintiffs may proceed on their claims under Section 22 1983 and at least plausible—though far less certain—that they also have a right to seek habeas 23 relief as well.”). This is obviously a novel issue and, to this court’s knowledge, the U.S. Court of 24 Appeals for the Ninth Circuit has not spoken definitively to the particulars at hand. Accordingly, 25 the court will not, on screening, dismiss the petition on this basis. 26 Nevertheless, the petition is not suitable to proceed in its current state. Petitioner has 27 failed to plead sufficient facts which support his contention that the California Department of 28 Corrections and Rehabilitation and California Medical Facility are “unfit to now handle the prison wOAOe 2 EUV ET BP UETIOCTI YS POO Ur ee MV VI 1 | population pandemic... ECF No. | at 4. He provides no allegations, for instance, detailing 2 || the inadequacies of his current conditions of confinement or how prison officials are otherwise 3 | failing to safeguard his health from the COVID-19 virus. Generalized fears or mere speculation 4 | about the impact of the virus are insufficient to state a cognizable habeas claim (assuming such a 5 | claim is, in fact, viable). See, e.g., United States v. Eberhart, 2020 U.S. Dist. LEXIS 51909, 2020 6 | WL 1450745 at *2 (N.D. Cal. 2020) (finding that “[g]eneral concerns about possible exposure to 7 || COVID-19 do not meet the criteria for extraordinary and compelling reasons” within the meaning 8 | of U.S.S.G. §1B1.13.”). 9 Accordingly, the petition is dismissed with leave to amend within thirty days. 10 Conclusion 11 Accordingly, it is ORDERED that: 12 1. Petitioner’s application to proceed in forma pauperis (ECF No. 2) is GRANTED; 13 2. The petition (ECF No. 1) is DISMISSED with leave to amend within 30 days from the 14 | date of service of this order; and 15 3. Failure to comply with this order may result in the dismissal of this action. 16 | DATED: May 15, 2020. 17 tid, PDEA 18 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28