(HC) McVay v. Merlak ( 2020 )

1 2 3 4 5 6 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, FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S MOTION FOR 13 v. TEMPORARY RESTRAINING ORDER AND TO DISMISS THE CASE 14 STEVEN MERLAK, OBJECTIONS DUE IN 14 DAYS 15 Respondent. ECF Nos. 1, 5 16 ORDER DIRECTING CLERK OF COURT TO 17 ASSIGN DISTRICT JUDGE TO CASE 18 19 Petitioner Steven McVay, a federal prisoner without counsel, seeks a writ of habeas 20 corpus under 28 U.S.C. § 2241. ECF No. 1. The petition, filed on April 6, 2020, contained a 21 time-sensitive request for a temporary restraining order. Id. Petitioner requested a court order 22 that would prevent his transfer to a different prison upon the imminent closing of his prison of 23 incarceration. Petitioner argued that his then-upcoming transfer placed him in immediate danger 24 due to the possibility of contracting the COVID-19 virus at the alternate facility. Thus, on April 7, 25 2020, the court ordered respondent to file a response. ECF No. 3. On April 13, 2020, respondent 26 argued in opposition to petitioner’s request, claiming that this court lacks jurisdiction to compel 27 28 1 the prison to take the action requested by petitioner. ECF No. 4.1 Petitioner did not reply, but on 2 April 15, 2020, filed a second motion for temporary restraining order. ECF No. 5. Petitioner has 3 since been released from prison to home confinement. 4 Discussion 5 The standard for dismissal of a habeas petition is set forth in Rule 4 of the Rules 6 Governing Section 2254 Cases. Under Rule 4, if it “plainly appears” that the petitioner is not 7 entitled to relief, we must dismiss the petition. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th 8 Cir. 1990). The “case-or-controversy requirement of Article III, § 2, of the Constitution subsists 9 through all stages of federal judicial proceedings, trial and appellate . . . . The parties must 10 continue to have a personal stake in the outcome of the lawsuit.” Lewis v. Continental Bank 11 Corp., 494 U.S. 472, 477-78 (1990) (internal quotations omitted). Therefore, throughout civil 12 proceedings, the petitioner “must have suffered, or be threatened with, an actual injury traceable 13 to the defendant and likely to be redressed by a favorable judicial decision.” Id. at 477. “[I]f it 14 appears that [the court is] without power to grant the relief requested, then the case is moot.” 15 Picrin-Peron v. Rison, 930 F.2d 773, 775 (9th Cir. 1991). Here, petitioner was released from 16 prison to home confinement in May 2020.2 Accordingly, we cannot grant petitioner the relief he 17 sought—an order preventing his transfer to another prison facility. Therefore, we recommend 18 that his habeas petition be dismissed. 19 A petitioner seeking a temporary restraining order must establish that he is likely to 20 succeed on the merits, that he is likely to suffer irreparable harm in the absence of such relief, that 21 the balance of equities tips in his favor, and that an injunction is in the public interest. See Winter 22 23 1 Although respondent attempted to make a motion to dismiss in the same document, such a filing does not comply with the local or federal rules because it was not filed as a separate document 24 under the motion event in the court’s electronic filing system. The court will not construe the respondent’s filing as a motion to dismiss. 25 2 We have reviewed the Federal Bureau of Prion’s inmate locator listing for the petitioner and take judicial notice of it per Rule 201 of the Federal Rules of Evidence. See Federal Bureau of 26 Prison Inmate Locator, https://www.bop.gov/inmateloc/ (search “Find an Inmate” for “Steven 27 McVay”). Petitioner is under the supervision of the Sacramento residential reentry management field office. 28 1 v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). Because petitioner has been released to 2 home confinement, he cannot show that he is currently in danger of the potential harm from 3 which he sought relief—exposure to the COVID-19 virus at the alternate prison facility. 4 Therefore, petitioner has not made the required showing for a temporary restraining order and we 5 recommend that his motion be denied. 6 Certificate of Appealability 7 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 8 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 9 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 10 district court to issue or deny a certificate of appealability when entering a final order adverse to a 11 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 12 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 13 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 14 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 15 his constitutional claims or that jurists could conclude the issues presented are adequate to 16 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 17 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the 18 denial of a constitutional right. Thus, we recommend that the court not issue a certificate of 19 appealability. 20 Findings and Recommendations 21 For the foregoing reasons, we recommend that the court deny petitioner’s motions for 22 temporary restraining orders, ECF Nos. 1, 5, and dismiss the case. These findings and 23 recommendations are submitted to the U.S. district judge presiding over the case under 28 U.S.C. 24 § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of the findings and 25 recommendations, the parties may file written objections to the findings and recommendations 26 with the court and serve a copy on all parties. That document must be captioned “Objections to 27 28 4:6 YU VOUETOU MARE ET MMU RO Me AY OT Mt 1 | Magistrate Judge’s Findings and Recommendations.” The presiding district judge will then 2 | review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 3 | Order 4 The clerk of court is directed to assign this case to a district judge for the purposes of 5 || reviewing these findings and recommendations. 6 7 IT IS SO ORDERED. ° : —N prssann — Dated: _ June 2, 2020 9 UNI STATES MAGISTRATE JUDGE 10 11 | No. 206. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28