- 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 KEVIN A. KELLY, Case No. 3:21-cv-00006-RCJ-CLB 5 Petitioner, 6 ORDER v. 7 WARDEN PERRY RUSSELL, et al., 8 Respondents. 9 10 11 12 Kevin A. Kelly, a Nevada state prisoner, represented by counsel, has filed a 13 petition for writ of habeas corpus under 28 U.S.C. § 2254, claiming that the conditions of 14 his confinement at the Northern Nevada Correctional Center (NNCC) violate the federal 15 constitutional prohibition of cruel and unusual punishment because of the danger from 16 COVID-19 to which he is exposed. See Petition for Writ of Habeas Corpus (ECF No. 1). 17 Kelly claims that he is at high risk from COVID-19 because “[h]e is fifty-nine years old 18 and suffers from high blood pressure, obesity, and heart problems,” and, therefore, 19 “[a]ccording to the Centers for Disease Control (“CDC”) he is at high risk of severe 20 illness from COVID-19.” Id. at 7. Kelly seeks “release from confinement at NNCC and 21 asks that he be allowed to reside outside the prison, at least until he is vaccinated.” Id. 22 at 8. 23 After examining Kelly’s petition under Habeas Corpus Rule 4, the Court 24 determines that Kelly’s petition is not cognizable in habeas corpus. His claim must be 25 brought, if at all, in a civil rights action under 42 U.S.C. § 1983. This action will be 26 dismissed. 27 Federal law provides for two primary means for state prisoners to seek relief on 1 complaints. See Muhammad v. Close, 540 U.S. 749, 750 (2004); Nettles v. Grounds, 2 830 F.3d 922, 927 (9th Cir. 2016) (en banc). “Challenges to the validity of any 3 confinement or to particulars affecting its duration are the province of habeas corpus.” 4 Id. (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). 5 This action, as pled by Kelly, concerns the conditions of his confinement, not the 6 fact or duration of his confinement. 7 The Supreme Court has not explicitly ruled out habeas as a vehicle for all 8 conditions-of-confinement claims. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017) 9 (leaving open the question whether immigration detainees challenging “large-scale 10 policy decisions concerning the conditions of confinement imposed ... might be able to 11 challenge their confinement conditions via a petition for a writ of habeas corpus”); 12 Boumediene v. Bush, 553 U.S. 723, 792 (2008) (declining to determine “the reach of the 13 writ with respect to claims of unlawful conditions of treatment or confinement”); Bell v. 14 Wolfish, 441 U.S. 520, 526, n. 6 (1979) (leaving for “another day the question of the 15 propriety of using a writ of habeas corpus to obtain review of the conditions of 16 confinement”); Preiser, 411 U.S. at 499 (“When a prisoner is put under additional and 17 unconstitutional restraints during his lawful custody, it is arguable that habeas corpus 18 will lie to remove the restraints making custody illegal.”). 19 In Nettles, however, the Ninth Circuit Court of Appeals provided further guidance 20 regarding the intersection between habeas corpus and civil rights actions under 42 21 U.S.C. § 1983. In Nettles, a habeas action, a state prisoner challenged a prison 22 disciplinary action on constitutional grounds, claiming the improper disciplinary action 23 could affect his eligibility for parole. The Court of Appeals held that because the 24 petitioner’s claim did not fall within the “core of habeas corpus,” that is, it did not 25 necessarily implicate the “fact or duration” of his conviction or sentence, it must be 26 brought, if at all, in a civil rights action under 42 U.S.C. § 1983. Nettles, 830 F.3d at 925 27 (quoting Preiser, 411 U.S. at 487). The Court of Appeals noted that the Supreme Court 1 || for state prisoners’ claims that fall outside the core of habeas. See id. at 929-31. The 2 || Court stated: 3 The [Supreme Court] has long held that habeas is the exclusive vehicle for claims brought by state prisoners that fall within the core of habeas, and 4 such claims may not be brought in a § 1983 action. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) 5 (characterizing the Court's precedents as holding “that a state prisoner's § 1983 action is barred (absent prior invalidation)—no matter the relief 6 sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—/f 7 success in that action would necessarily demonstrate the invalidity of confinement or its duration”). Based on our review of the development of 8 the Court’s case law in this area, we now adopt the correlative rule that a § 1983 action is the exclusive vehicle for claims brought by state prisoners 9 that are not within the core of habeas corpus. 10 || Nettles, 830 F.3d at 927. 11 Therefore, following Nettles, this Court concludes that Kelly’s claims, challenging 12 || the conditions of his confinement, and not the fact or duration of his confinement, are 13 || not within the core of habeas corpus, and are not cognizable in this habeas corpus 14 || action. Kelly’s claim must be brought, if at all, as a civil rights action pursuant to 42 15 || U.S.C. § 1983. 16 IT IS THEREFORE ORDERED that this action is dismissed. 17 IT IS FURTHER ORDERED that, as jurists of reason would not find this ruling 18 || debatable, the petitioner is denied a certificate of appealability. 19 IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter 20 || judgment accordingly. 21 22 DATED THIS 8th day of February, 2021. 23 24 . ROBERT C. JGNES, 25 UNITED STA DISTRICT JUDGE 26 27 28
Document Info
Docket Number: 3:21-cv-00006
Filed Date: 2/8/2021
Precedential Status: Precedential
Modified Date: 6/25/2024