United States District Court, E.D. California
DAVID L. MATHIS, Petitioner,
J. SALAZAR, Warden, Respondent.
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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.
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.
In Forma Pauperis Application
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. §
Standard of Review
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.
Petitioner's Allegations, Claims and Request
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.
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.
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.
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.
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