(HC)Her v. Mendota Prison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NOU HER, Case No. 1:23-cv-00272-CDB (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION THAT THE PETITION FOR WRIT OF HABEAS CORPUS 13 v. BE DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND 14 MENDOTA PRISON, (Doc. 1) 15 Respondent. TWENTY-ONE DAY DEADLINE. 16 17 Clerk of Court to randomly assign District Judge 18 19 Petitioner Nou Her (“Petitioner”), a federal prisoner proceeding pro se with a petition for writ 20 of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). A preliminary screening of the petition 21 reveals it should be dismissed as the petition does not fall within the core of habeas corpus. 22 Preliminary Screening 23 Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 24 review of each petition for writ of habeas corpus.1 Pro se habeas corpus petitions are to be liberally 25 construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court must dismiss a 26 petition “[i]f it plainly appears from the petition…that the petitioner is not entitled to relief.” Habeas 27 28 1 The Rules Governing § 2254 cases in the United States Courts (Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b). 1 Rule 4. Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the 2 Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading 3 is not sufficient; rather, the petition must state facts that point to a real possibility of a constitutional 4 error. Mayle v. Felix, 545 U.S. 644, 655 (2005) (“Habeas Corpus Rule 2(c) is more demanding”). 5 Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary 6 dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus 7 should not be dismissed without leave to amend unless it appears that no tenable claim for relief can 8 be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per 9 curiam). 10 The Petition 11 Prior to 2023, Petitioner alleges his jaw was broken in “[five] different places.” (Doc. 1 at 1). 12 Petitioner claims his lower jaw was held together by wire to keep his jawbone in place. Id. In January 13 2023, Petitioner purports he was called to dental at FCI Mendota to extract several of his rear teeth 14 because of his broken jaw. Id. Petitioner notes Dr. Moon, a private contractor, performed the 15 extraction. Id. at 1-2. 16 Petitioner alleges during the extraction, Dr. Moon “cut the wire which held my jaw together, 17 presumably to facilitate a less difficult extraction”. Id. at 1. Petitioner claims Dr. Moon denied 18 cutting the wire holding his jaw together. Id. at 2. Petitioner asserts he is in extreme pain because of 19 Dr. Moon’s alleged actions. Id. at 2. Petitioner contends he sought administrative relief but “no reply 20 was forthcoming.” Id. Petitioner claims his future “specialist appointments [regarding his] jaw” have 21 been canceled. Id. 22 On February 23, 2023, Petitioner filed the instant petition. (Doc. 1). Petitioner argues his 23 confinement is unconstitutional pursuant to 28 U.S.C. § 2241. Id. at 3. Specifically, Petitioner avers 24 Dr. Moon and BOP’s conduct amounts to cruel and unusual punishment and deliberate indifference in 25 violation of the Eighth Amendment, negligence, and medical malpractice. Id. Petitioner requests the 26 Court order BOP to provide him with medical relief. Id. at 3. 27 /// 28 /// 1 Discussion 2 Petitioner has failed to state a cognizable federal habeas claim. Federal law allows two main 3 avenues for relief on complaints related to imprisonment: a petition for habeas corpus, and a complaint 4 under 42 U.S.C. § 1983. Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curium). Habeas corpus 5 is the appropriate remedy for challenges to the validity of the fact or length of confinement or matters 6 affecting the duration of confinement. Preiser v. Rodriquez, 411 U.S. 475, 500 (1973). If a favorable 7 challenge would not “necessarily lead to [a petitioner’s] immediate or earlier release from 8 confinement,” the claim does not fall within “the core of habeas corpus.” Nettles v. Grounds, 830 F.3d 9 922, 935 (9th Cir. 2016). Instead, requests for relief turning on circumstances of confinement may be 10 presented in a § 1983 action. Muhammad, 540 U.S. at 750; see Ramirez v. Galaza, 334 F.3d 850, 859 11 (9th Cir. 2003) (“habeas jurisdiction is absent, and a § 1983 action is proper, where a successful 12 challenge to a prison condition will not necessarily shorten the prisoner’s sentence.”). 13 Here, Petitioner alleges cruel and unusual punishment and deliberate indifference in violation 14 of the Eighth Amendment, negligence, and medical malpractice. See generally (Doc. 1). These 15 claims relate to the conditions of Petitioner’s confinement rather than its legality. An appropriate 16 remedy for these claims, if proven, would be in the form of damages or a change in conditions, not 17 release. Indeed, Petitioner requests the Court order BOP to provide him medical relief not release. Id. 18 at 3. Thus, Petitioner’s claim is not cognizable in a federal habeas corpus proceeding. 19 The claims raised in the petition may be cognizable if raised in a § 1983 civil rights action. 20 When a habeas petition “is amenable to conversion on its face, meaning that it names the correct 21 defendants and seeks the correct relief, the court may recharacterize the petition so long as it warns the 22 pro se litigant of the consequences of the conversion and provides an opportunity for the litigant to 23 withdraw or amend his or her complaint.” Nettles, 830 F.3d at 936 (quoting Glaus v. Anderson, 408 24 F.3d 382, 388 (7th Cir. 2005)). 25 Habeas actions and § 1983 prisoner civil right cases “differ in a variety of respects—such as 26 the proper defendant, filing fees, the means of collecting them, and restrictions on future filings—that 27 may make recharacterization impossible or, if possible, disadvantageous to the prisoner compared to a 28 dismissal without prejudice of his petition for habeas corpus.” Id. at 935-36 (citations omitted); 1 United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000) (courts should not recharacterize a 2 prisoner’s pro se filing as a federal habeas petition when doing so may be to the prisoner’s 3 disadvantage). For instance, the filing fee for a habeas petition is $5, and if leave to proceed in forma 4 pauperis is granted, as it has been here, the fee is forgiven. For civil rights cases, however, the fee is 5 $400 and under the Prison Litigation Reform Act the prisoner is required to pay $350, even if granted 6 in forma pauperis status, by way of deductions from the income to the prisoner’s trust account. See 28 7 U.S.C. § 1915(b)(1). A prisoner who might be willing to file a habeas petition for which he or she 8 would not have to pay a filing fee might otherwise forgo a civil rights complaint for which the fee 9 would be deducted from income to his or her account. Also, a civil rights complaint that is dismissed 10 as malicious, frivolous, or for failure to state a claim would count as a “strike” under 28 U.S.C. § 11 1915(g), which is not true for habeas cases. 12 Based on these differences between habeas and civil rights cases, the Court will recommend 13 that this petition be dismissed. Because it is apparent Petitioner cannot set forth a viable claim for 14 relief, the petition will be dismissed without leave to amend. Jarvis, 440 F.2d at 14. Though the 15 undersigned expresses no view regarding the merits of any such claim, Petitioner may file a claim 16 pursuant to 42 U.S.C. § 1983 based on the allegations contained in the petition. 17 Conclusion and Recommendation 18 Accordingly, IT IS HEREBY ORDERED: 19 1. The Clerk of Court is DIRECTED to randomly assign a district judge to this action for the 20 purposes of reviewing these findings and recommendations. 21 2. The Clerk of Court is DIRECTED to send Petitioner one blank copy of the form complaint 22 for 42 U.S.C. § 1983 civil rights action. 23 And IT IS HEREBY RECOMMENDED 24 1. The petition shall be DISMISSED without leave to amend for failure to state a habeas claim. 25 These findings and recommendations will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days of 27 being served with these findings and recommendations, Petitioner may file written objections with the 28 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 1 || Recommendations.” Petitioner is advised that failure to file objections within the specified time may 2 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 3 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 || IT IS SO ORDERED. Dated: _March 13, 2023 | hr 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28