(HC) Lopez-Miranda v. Merlak ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MANUEL DE JESUS LOPEZ- Case No. 1:19-cv-01021-LJO-JDP MIRANDA, 12 FINDINGS AND RECOMMENDATIONS Petitioner, THAT PETITION BE DISMISSED FOR 13 LACK OF JURISDICTION v. 14 OBJECTIONS DUE IN FOURTEEN DAYS STEVEN MERLAK, 15 ECF No. 1 Respondent. 16 ORDER DIRECTING CLERK TO SEND PETITIONER § 1983 COMPLAINT FORM 17 18 19 Petitioner Manuel De Jesus Lopez-Miranda, a federal prisoner without counsel, seeks a 20 writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. Petitioner does not challenge his 21 conviction or sentence. Instead, he claims that he is not receiving proper medical care in prison. 22 ECF No. 1 at 1. This matter is before us for preliminary review under Rule 4 of the Rules 23 Governing Section 2254 Cases. See R. Governing Section 2254 Cases, Rule 1(b); 28 U.S.C. 24 § 2243. Under Rule 4, a district court must dismiss a habeas petition if it “plainly appears” that 25 the petitioner is not entitled to relief. We recommend the petition be dismissed for lack of 26 jurisdiction. However, petitioner may be able to seek relief by filing a 42 U.S.C. § 1983 claim. 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 states that the prison 7 did not provide him adequate medical care to treat his hiatal and umbilical hernias over a period 8 of fifteen months. ECF No. 1 at 2. He does not challenge the manner of execution of his 9 sentence. Because petitioner’s claims are not cognizable under § 2241, they should be dismissed 10 for lack of jurisdiction. 11 We next consider whether to convert the petition into a § 1983 complaint. “If the 12 complaint is amenable to conversion on its face, meaning that it names the correct defendants and 13 seeks the correct relief, the court may recharacterize the petition so long as it warns the pro se 14 litigant of the consequences of the conversion and provides an opportunity for the litigant to 15 withdraw or amend his or her complaint.” Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016) 16 (remanding case to district court to consider claim under § 1983). When filing a § 1983 claim, 17 courts require plaintiffs to “plead that (1) the defendants acting under color of state law (2) 18 deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United 19 States, 781 F.2d 1334, 1338 (9th Cir. 1986). A person deprives another of a constitutional right, 20 “within the meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative 21 act, or omits to perform an act which he is legally required to do that causes the deprivation of 22 which complaint is made.’” Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 23 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). There is no 24 respondeat superior liability—i.e., liability of a supervisor for acts of a supervisee. Each 25 defendant is only liable for his or her own misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 667 26 (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 of sub-standard 1 medical care are too conclusory to state a § 1983 claim, and petitioner has named only the warden 2 of his institution as the respondent; petitioner has not named the people who directly committed 3 the affirmative acts or omissions that violated his rights. Second, conversion may be unfair to 4 petitioner. The filing fee for a habeas petition is $5, and if leave to proceed in forma pauperis is 5 granted, the fee is forgiven. For civil rights cases, however, the filing fee is $350 plus an 6 administrative fee of $50. Under the Prisoner Litigation Reform Act, the prisoner is required to 7 pay the $350 filing fee, even if he is granted in forma pauperis status, by way of deductions from 8 his trust account. See 28 U.S.C. § 1915(b)(1). If we were to convert this action to a § 1983 9 action, petitioner would face the larger filing and administrative fees—and given this 10 consideration he might prefer not to file such an action. 11 While we decline to convert the petition, petitioner is free to file a § 1983 complaint. A 12 complaint must contain a short and plain statement that plaintiff is entitled to relief, Fed. R. Civ. 13 P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its face,” Bell 14 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not require 15 detailed allegations, but legal conclusions do not suffice. See Iqbal, 556 at 678. If the allegations 16 “do not permit the court to infer more than the mere possibility of misconduct,” the complaint 17 states no claim. Id. at 679. The complaint need not identify “a precise legal theory.” Kobold v. 18 Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016). Instead, what plaintiff 19 must state is a “claim”—a set of “allegations that give rise to an enforceable right to relief.” 20 Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc) (citations 21 omitted). The complaint must state what actions each named defendant took that deprived 22 plaintiff of constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. Williams, 23 297 F.3d 930, 934 (9th Cir. 2002). 24 Order 25 The clerk’s office is directed to send petitioner a § 1983 complaint form. 26 Findings and Recommendations 27 We recommend that the court dismiss the petition and decline to issue a certificate of 28 appealability. Under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for 1 | the United States District Court, Eastern District of California, we submit the findings and 2 || recommendations to the district judge presiding over the case. Within fourteen days of the 3 | service of the findings and recommendations, any party may file written objections to the findings 4 | □□□ recommendations. That document must be captioned “Objections to Magistrate Judge’s 5 | Findings and Recommendations.” The presiding district judge will then review the findings and 6 | recommendations under 28 U.S.C. § 636(b)(1)(C). 7 g IT IS SO ORDERED. ° vi. —N prssann — Dated: _ February 7, 2020 10 UNIT#D STATES MAGISTRATE JUDGE 11 12 13 | No. 206. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28