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Mathis v. Salazar

United States District Court, E.D. California

March 24, 2017

DAVID L. MATHIS, Petitioner,
v.
J. SALAZAR, Warden, Respondent.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, and a request to proceed in forma pauperis; petitioner has also filed a motion for preliminary injunctive relief. Petitioner has consented to the jurisdiction of the undersigned United States Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c), and Local Rule 305(a). See ECF No. 8.

         For the reasons that follow, the petition is denied without leave to amend for failure to state a cognizable claim, and petitioner's motion for preliminary injunctive relief is denied as moot.

         II. In Forma Pauperis Application

         Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, petitioner's request for leave to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

         III. Standard of Review

         A federal prisoner challenging the manner, location, or conditions of the execution of his or her sentence, on federal constitutional, statutory or treaty grounds, must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam). A district court must award a writ of habeas corpus or issue an order to show cause why the writ should not be granted unless it clearly appears from the petition that the applicant is not entitled to relief. See 28 U.S.C. § 2243.

         IV. Petitioner's Allegations, Claims and Request Relief

         Petitioner makes the following allegations. See ECF No. 1 at 1-3. Petitioner was transferred to the Federal Correctional Institution (FCI) in Herlong on December 27, 2012. On January 7, 2013, FCI Herlong instituted a “two-hour watch program, ” which requires that selected inmates verify their location to officials every two hours. On the same date, petitioner and two other FCI Herlong inmates were placed in the program.

         From March 2013 to June 2016, petitioner sought unsuccessfully to obtain a copy of the program statement or underlying regulation, neither of which was posted for inmate review, either at the law library or on the prison's electronic bulletin board. In July 2016, petitioner requested removal from the program, alleging a denial of equal protection. Petitioner's request was denied at the informal “Unit Team” level, on the ground that the team did have authority to grant the requested relief. Next, the Warden informed petitioner that he “met the criteria for the institution['s] two-hour watch program, ” without addressing petitioner's equal protection claim. The next response, from the Regional Director, informed petitioner that “all inmates” in FCI Herlong's general population “with the past history of escape or attempted escape are currently in the 2-hour watch program, ” without addressing plaintiff's request for a program statement. Finally, the National Inmate Appeals Administrator denied petitioner's appeal on December 6, 2016, reiterating the assessment of the Regional Director that “all inmates” with a past history of escape or attempted escape were placed in the program; the Regional Director provided petitioner with a copy of “Program Statement 5510.13, Posted Picture File, ” explaining that program procedures are developed “locally, ” but did not address petitioner's equal protection claim.

         Petitioner contends that the selection of inmates for inclusion in the two-hour watch program is arbitrary and therefore violates his rights to due process and equal protection. He alleges that the only official with direct access to all inmate files at CFI Herlong is the Warden, who opined only that petitioner met the criteria for inclusion in the program. Petitioner contends that the Regional Director's statement that the program includes all inmates with a past history of escapes or attempted escapes is untrue. In support of this contention, petitioner identifies two FCI Herlong inmates with escape convictions who are not in the program, and one inmate who is in the program who does not have a history of escapes or attempted escapes. Petitioner explains that he presently “does not seek to be removed from the two-hour watch program” but “asserts that those who are similarly situated should be equally treated to inclusion in the program.” ECF No. 1 at 4.

         Petitioner argues that the failure of FCI Herlong officials to post a comprehensive statement describing the criteria for inclusion in the program is also a violation of due process. He contends that the Federal Bureau of Prison's (BOP) “Program Statement 5510.13, Posted Picture File, ” given him by the National Administrator, does not identify the requirements for inclusion in the program but states only that the “[p]rocedures for two hour watch will be developed and negotiated locally.” See ECF No. 1 at 20 (Statement, § 3(k)). Petitioner seeks an order from this court declaring FCI Herlong's two-hour watch program unconstitutional; or, alternatively, an order directing the FCI Herlong Warden to conspicuously post a statement describing the purpose, scope, and eligibility criteria for the program, as well as the procedures and documentation for assessing inmate eligibility for the program. See ECF No. 1.

         In his motion for preliminary injunctive relief, petitioner seeks an order directing the FCI Herlong Warden to “return the battery-operated clocks to the Food Service Department, the Health Services Department, and Commissary, ” or to provide petitioner with a watch. Petitioner also seeks an order directing respondent “to place similarly situated inmates in the prison's 2-hour watch program” and provide petitioner with “a copy of the written program statement for the 2hour watch program.” See ECF No. 6. Petitioner complains that the removal of clocks in FCI Herlong makes it difficult for petitioner and other similarly situated inmates to timely report to officials. When petitioner complained to officials about the absence of ...


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