The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT‟S MOTION TO DISMISS PETITION (Doc. 11) ORDER REQUIRING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The instant petition was filed on March 3, 2011. (Doc. 1). It alleges that, while incarcerated at the Taft Correctional Institution, Taft, California, Petitioner was denied "appropriate and effective medication" to treat a fungal infection of his foot. (Id., p. 3). On April 18, 2011, the Court ordered Respondent to file a response to the petition (Doc. 5), and on June 17, 2011, Respondent filed an Answer to the merits of the petition. (Doc. 10). On February 28, 2012, Respondent filed a motion to dismiss the petition as moot, contending that, because Petitioner has now been transferred to a residential re-entry center, he has been "released," and therefore Petitioner‟s habeas claim is now moot. (Doc. 11). Petitioner has filed no opposition to the motion to dismiss. For the reasons set forth 2 below, the Court recommends that Respondent‟s motion to dismiss be granted. 3
Relief by way of a writ of habeas corpus extends to a person in custody under the authority of 5 the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity 6 or constitutionality of his conviction must bring a petition for writ of habeas corpus under 28 U.S.C. § 7 2255, a petitioner challenging the manner, location, or conditions of that sentence's execution must 8 bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, e.g., United States v. Giddings, 9 740 F.2d 770, 772 (9th Cir.1984); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). To receive relief under 28 U.S.C. § 2241 a petitioner in federal custody must show that his sentence is being executed in an illegal, but not necessarily unconstitutional, manor. See, e.g., Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir. 1995) (contending time spent in state custody should be credited toward federal custody); Jalili, 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); Barden, 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of inaccurate pre-sentence report used to deny parole).
Here, Petitioner is challenging the medical treatment received at Taft Correctional Institution. Thus, he is challenging the execution of his sentence, which is maintainable only in a habeas corpus proceeding. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1990). Furthermore, because Petitioner is challenging the execution of his sentence at Taft Correctional Institution ("TCI"), and TCI is within the Easter District of California, Fresno Division, this Court has jurisdiction over the petition. See Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
At the time of filing of the petition, Petitioner was in the custody of the BOP serving a 120 month prison sentence at the Taft Correction Institution ("TCI"), in Taft, California, for a 2004 conviction in the United States District Court for the Eastern District of Virginia for violations of 18 U.S.C. § 846, conspiracy to distribute cocaine, and 18 U.S.C. § 924(c), possession of a firearm in the commission of a drug crime. (Doc. 1, p. 2). On January 30, 2012, Petitioner was transferred from TCI 2 to a residential re-entry center in Virginia. (Doc. 11, p. 4). 3
On June 10, 2010, Petitioner sought medical treatment for a fungal infection in his foot. (Doc. 10, Ex. A). Petitioner returned on January 4, 2011, complaining of the same medical problem and was 5 asked to return on January 11. (Id., Ex. C). On January 11, 2011, Petitioner was diagnosed with a 6 fungal toenail infection, and was prescribed, inter alia, a disinfecting foot soak. (Id., Ex. D). 7 Petitioner declined this treatment and requested Fluconazole, an antifungal pill. (Id., Ex. E). The 8 nurse refused to prescribe the requested treatment, noting that, as per the BOP‟s National Formulary, 9
Fluconazole is only approved for diabetic patients suffering from a toenail fungus, and Petitioner was not a diabetic. (Id., Ex. D). Petitioner refused the proffered treatment, and, after exhausting his administrative remedies, filed the instant federal petition. In his Petition, Petitioner makes no claim that the disinfecting wash prescribed by Respondent‟s agents was either ineffective or inadequate to treat his medical condition. Rather, he argues only that the remedy provided was not what he had requested.
A. Procedural Grounds for Motion to Dismiss
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. The Ninth Circuit has allowed Respondent‟s to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state‟s procedural rules. See, e.g., O‟Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, ...