The opinion of the court was delivered by: Present: The Honorable Sheri Pym, United States Magistrate Judge
Kimberly I. Carter n/a n/a
Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Petitioner: Attorneys Present for Respondent: n/a n/a Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not Be Dismissed for Failure to State Cognizable Ground for Habeas Relief
On June 18, 2012, petitioner filed a habeas corpus petition under 28 U.S.C. § 2241, in which petitioner contends his rights have been violated because staff negligence resulted in the loss of his trial transcripts. After reviewing the petition, the court finds that it does not appear to state a cognizable ground for habeas corpus relief.
"[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 36 L. Ed. 439 (1973). With the instant 2241 petition, petitioner challenges the loss of his property, but he does not appear to be seeking release from custody, nor is he challenging the legality of his current custody. Instead, petitioner is contending that the conditions of his custody -- the conditions that resulted in the loss of his property -- have deprived him of his rights to meaningfully pursue collateral relief.
Because the fundamental nature of petitioner's 2241 petition is a challenge to the conditions of his confinement rather than to the legality of his confinement, it is not cognizable on habeas corpus review. See, e .g., Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil rights action is proper method of challenging conditions of prison confinement); Crawford v. Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and conditions of confinement must be brought in civil rights complaint); see also Wilkinson v. Dotson, 544 U.S. 74, 78-82, 125 S. Ct. 1242; 161 L. Ed. 2d 253 (2005) (discussing the relationship between § 1983 and the federal habeas statutes); Muhammad v. Close, 540 U.S. 749, 750, 124 S. Ct. 1303, 158 L. Ed. 2d 32 (2004) ("Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus [citation]; requests for relief turning on circumstances of confinement may be presented a § 1983 [civil rights] action.").
Although petitioner appears not to have presented a proper petition for writ of corpus, the court has discretion to construe the 2241 petition as a civil rights complaint. See Willwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971) (holding that district courts have discretion to construe a habeas petition attacking conditions of confinement as a civil rights complaint despite deliberate choice petitioner to proceed on habeas), superceded by statute on other grounds as recognized in Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006). But if the court were to construe the instant 2241 petition as a civil rights complaint brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) -- which allows a plaintiff to sue a federal officer for civil rights violations under color of federal law --would have a number of consequences.
First, the court is unable to treat the petition as a civil rights complaint at this time, because petitioner has not paid the $350 filing fee required for such a complaint to be filed. Although petitioner may file a request to proceed without prepayment of the $350 filing fee, he has not filed such a request at this time.
In addition, construing the instant habeas petition as a civil rights complaint would require the court to screen the petition/complaint under the Prison Litigation Reform Act, which obligates the court to review complaints filed by all persons proceeding in pauperis, and by prisoners seeking redress from government entities. See 28 U.S.C. §§ 1915(e)(2), 1915A. Under these provisions, the court may sua sponte dismiss, any time," any prisoner civil rights action and all other in forma pauperis complaints are frivolous or malicious, fail to state a claim, or seek damages from defendants are immune. Id., see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) banc).
Although the court has not thoroughly screened the petition as a civil rights complaint at this time, the court's cursory review reveals certain defects. In particular, petitioner appears not to have named a proper defendant for a civil rights action. Petition as the sole respondent Warden Gutierrez, the warden of his prison, as is proper in petitions. But he has not alleged any facts suggesting that the warden was personally involved in the deprivation of rights of which he complains. A supervisory position is an insufficient basis for civil rights liability. See Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (holding that "respondeat superior is inapplicable to Bivens actions"). "Because the doctrine of respondeat superior does not apply in Bivens actions, a plaintiff must allege that the individual defendant was personally involved in the constitutional violation." Thomas v. Ashcroft, 470 F.2d 491, 496 (2d Cir. 2006).
In addition, it is not clear that petitioner is alleging a constitutional violation. Instead, he appears to allege mere negligence, which appears to suggest a tort claim rather than a civil rights violation. Under the Federal Tort Claims Act ("FTCA") (see 28 U.S.C. §§ 1346(b), 2671-2680), a claim against the United States is the "exclusive" remedy for plaintiffs seeking to recover damages from the "negligent or wrongful act or omission of any employee of the Government . . . acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). The FTCA holds that individual government employees are not personally liable for tort claims against them while acting in the and scope of their employment. 28 U.S.C. § 2679(d). Instead, "the United States the only proper party defendant in an FTCA action . . . ." Kennedy v. U.S. Postal , 145 F.3d 1077, 1078 (9th Cir. 1998) (per curiam). Thus, it appears that it may be for the court to construe the petition as a civil rights complaint.
Petitioner is further advised that civil rights complaints by prisoner are subject to dismissal for failure to exhaust administrative remedies. See 42 U.S.C. § 1997(e) ("No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional until such administrative remedies as are available are exhausted."). Compliance with this exhaustion requirement is required. Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002); Booth v. Churner, 532 U.S. 731, 739-40 & n.5, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001). A plaintiff challenging the conditions of confinement must exhaust available administrative remedies before filing suit even if it be futile to do so because, for example, the plaintiff seeks only money damages and administrative procedure cannot provide payment. Booth, 532 U.S. at 740-41. Moreover, § 1997e(a) requires that an action be dismissed unless administrative remedies were exhausted before the prisoner filed suit, even if the prisoner later completed exhaustion while the suit was pending. McKinney v. Carey, 311 F.3d 1198, (9th Cir. 2002). Such failure to exhaust is an affirmative defense, which a defendant may raise in an "unenumerated" motion to dismiss under Fed. R. Civ. P. 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1117-19 & n.9 (9th Cir. 2003).
Based on the foregoing, petitioner is hereby Ordered to Show Cause in writing no later than July 23, 2012 why the instant 2241 petition should not be dismissed for failure to state a cognizable ground for habeas corpus relief. Petitioner may comply ...