The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS WITHOUT LEAVE TO AMEND PETITIONER'S CLAIMS IN THE
AMENDED PETITION CONCERNING CONDITIONS OF CONFINEMENT
VIOLATIONS OF THE EQUAL
PROTECTION CLAUSE AND THE SIXTH,
EIGHTH, NINTH, AND THIRTEENTH
AMENDMENTS (DOC. 7)
FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER'S MOTION FOR A TEMPORARY RESTRAINING ORDER (DOC. 10)
FINDINGS AND RECOMMENDATIONS TO REFER THE PROCEEDING BACK TO THE MAGISTRATE JUDGE TO DIRECT THE FILING OF A RESPONSE TO THE REMAINING CLAIMS IN THE PETITION
Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the first amended petition (FAP), which was filed on May 3, 2012, after Petitioner's original petition was dismissed with leave to amend.
I. Screening the Petition
The Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). The requirement that the petitioner allege specific facts and show the relationship of the facts to the claim is consistent with the purpose of the Habeas Rules, which is to assist the district court in determining whether the respondent should be ordered to show cause why the writ should not be granted and to permit the filing of an answer that satisfies the requirement that it address the allegations in the petition. Mayle v. Felix, 545 U.S. 644, 655 (2005). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.
The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Petitioner alleges that he is an inmate of the United States Penitentiary at Atwater, California (USPA) serving a seventy-seven-month sentence imposed in September 2008 in the United States District Court for the Eastern District of Missouri for being a felon in possession of a firearm. (FAP, 1-2.) Petitioner complains of a finding, made by a disciplinary hearing officer (DHO) at the Federal Correctional Institution at Memphis (FCIM), that Petitioner had committed an assault upon a fellow inmate on September 7, 2009, in connection with incident report number 19443315. The finding resulted in a loss of forty days of good time credit, placement in the secured housing unit for five months, and limitations of various privileges.
Petitioner raises the following claims in the FAP: 1) his rights under the Due Process Clause, Equal Protection Clause, Sixth Amendment, Eighth Amendment, and various program statements of the Bureau of Prisons (BOP) were violated by the delay in his receipt of the report of the DHO, which resulted in obstruction or extinction of Petitioner's right to appeal the finding; 2) his rights to due process of law under the Fifth and Fourteenth Amendments, and his rights under the Sixth Amendment, the Eighth Amendment's prohibition of cruel and unusual punishment, the Ninth Amendment, the Thirteenth Amendment, the Fourteenth Amendment, as well as "CONSPIRACY, DOUBLE PUNISHMENT, SLANDER, MALFEASANCE, FALSE DECLARATION, DELIBERATE INDIFFERENCE, GROSS NEGLIGENCE, AND DISCRIMINATION" (FAP 6) were violated by the hearing officer's finding that Petitioner committed the assault because a) there was evidence contrary to the findings, and the DHO should base a decision on the greater weight of the evidence,
b) the findings were "prejudice, bias, and impartial" (id. at 6), which appears to constitute a claim of a biased DHO or disciplinary tribunal, c) Petitioner was not permitted to present any evidence, d) Petitioner was not permitted to amend his notice to request staff representation when it was made clear to him that his full statement was not submitted with a "515" or "SIS" report (id. at 7), e) his request for "camera review" was not admissible, and f) his statement to Lieutenant J. Phillips, an investigator, that Petitioner had been in a struggle with inmate Young, was coerced; 3) Petitioner's rights to due process under the Fifth and Fourteenth Amendments, protection from cruel and unusual punishment under the Eighth Amendment, and protection from involuntary servitude under the Thirteenth Amendment were violated by the failure to follow various program statements of the BOP which require full review of the findings, keeping of records of the hearing and supporting documents in central files, and hearing by three staff members instead of two;*fn1 4) Petitioner's rights under the Fifth, Sixth, Eight, Ninth, Thirteenth, and Fourteenth Amendments as well as "CONSPIRACY" (id. at 9) were violated by a conspiracy among the investigating officer, Lieutenant J. Phillips, and the warden, associate warden, Captain Phil Roberts, and Lieutenant J. Elam at FCIM, when a) Petitioner was deceived by Lt. Phillips' statement that Petitioner was not being referred for prosecution or being charged with an assault, b) Petitioner's statement was not included in a report, nor was there any mention of how Young's injuries were inflicted, how Petitioner incurred a scratch on his face, or of the use of any weapon, c) various program statements concerning the qualifications and certifications of the investigating officer and the duty of an investigating officer to provide a report, read charges, and state the reason for any delay were disregarded, and d) Lieutenant S. Plunkett undertook a second investigation but refused to record Petitioner's statement, and unspecified evidence was overlooked.
Petitioner seeks monetary relief for settlement of his claim on each level of appeal; an injunction or declaration that detention in the United States Prison system is arbitrary, unlawful, and unconstitutional; injunctive relief against transfer, detention, destruction of files, and staff interference and retaliation; surrender of all evidence related to the incident report, including the full names of all staff involved; expungement of the incident report and all subsequent incident reports; restoration of Petitioner's good conduct credits, all points, and his former custody classification; dismissal of close supervision; and transfer or release to a residential drug abuse program. (FAP at 11.)
II. Conditions of Confinement
A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000).
Relief by way of a writ of habeas corpus extends to a person in custody under the authority of the United States if the petitioner can show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(1) & (3). Specifically, a habeas corpus action is the proper mechanism for a prisoner to challenge the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990). However, to the extent that the prisoner seeks damages or injunctive relief for civil rights violations, the prisoner's claim or claims are properly brought in an action pursuant to Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388 (1971). See, Tucker v. Carlson, 925 F.2d at 332.
Here, Petitioner's complaints concerning conspiracy, retaliation, slander, deliberate indifference, gross negligence, discrimination, deceptive statements concerning the authorities' intentions concerning prosecution or charges, and limitations on various privileges in prison relate not to the legality or duration of Petitioner's confinement, but rather to the conditions of Petitioner's confinement. Petitioner is seeking relief related to the conditions of confinement to the extent that he seeks monetary and injunctive relief concerning staff interference and retaliation, orders concerning the possession of evidence relating to the incident report, changes in Petitioner's classification points and custody classification, termination of close supervision, and transfer or release to a residential drug abuse program.
As Petitioner is challenging his conditions of confinement, and not matters relating to the legality or duration of his confinement, these claims are not cognizable in this proceeding pursuant to 28 U.S.C. § 2241. It will, therefore, be recommended that these claims be dismissed without leave to amend and without prejudice to bringing them in a civil rights action pursuant to Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388 (1971).
III. Violations of Program Statements Petitioner alleges that various program statements of the Bureau of Prisons (BOP) were violated by actions of BOP staff. For example, Petitioner complains of the failure to include Petitioner's statement in a report, a delay in Petitioner's receipt of the DHO's report, the extent of the BOP's review of the findings, the manner in which records of the disciplinary hearing were stored in the central files, the identity and qualifications of the staff members who heard the violation, the reading of charges, and a statement of the reasons for delay.
The BOP's purported noncompliance with a program statement has been held not to be a violation of federal law because a program statement is an internal agency guideline that may be altered by the BOP at will; it is not subject to the Administrative Procedure Act's procedures of public notice and comment. Thus, such noncompliance does not state a claim cognizable in a 2241 proceeding. Reeb v. Thomas, 636 ...