United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR
RELIEF [ECF No. 1]
Michael Alvarez Fykes is appearing pro se and in forma
pauperis in this case. Plaintiff is in the custody of the
Federal Bureau of Prisons (“BOP”) and has filed
this civil rights action pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Plaintiff declined United States Magistrate Judge
jurisdiction; therefore, this matter was referred to the
undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 302.
before the Court is Plaintiff's complaint, filed March 9,
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that “fails to state a claim on
which relief may be granted, ” or that “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief. . .
.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must demonstrate that each named defendant
personally participated in the deprivation of his rights.
Iqbal, 556 U.S. at 676-677; Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
proceeding pro se in civil rights actions are still entitled
to have their pleadings liberally construed and to have any
doubt resolved in their favor, but the pleading standard is
now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121
(9th Cir. 2012) (citations omitted), and to survive
screening, Plaintiff's claims must be facially plausible,
which requires sufficient factual detail to allow the Court
to reasonably infer that each named defendant is liable for
the misconduct alleged. Iqbal, 556 U.S. at 678-79;
Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
Cir. 2009). The “sheer possibility that a defendant has
acted unlawfully” is not sufficient, and “facts
that are ‘merely consistent with' a defendant's
liability” falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678; Moss, 572
F.3d at 969.
February 1, 2015, Plaintiff was a passenger in a car in
Colorado Springs, Colorado. Police acting upon emergency
information that Plaintiff was involved in pimping, conducted
a traffic stop and arrested the occupants of the vehicle.
Plaintiff was charged in state court with violation of
pimping and human trafficking, but the charges were
dismissed. However, upon searching the vehicle, police
discovered a gun inside a backpack in the trunk of the car
which had Plaintiff's passport in it. Plaintiff was
charged federally with possession of a weapon by a prohibited
person, 18 U.S.C. § 922, and this charge is distinct
from the facts for which Plaintiff was stopped. After a jury
trial, Plaintiff was convicted of possessing a weapon.
However, Plaintiff was never charged or convicted of human
trafficking. Therefore, Plaintiff contends the facts relating
to the human trafficking should not be used to score
Plaintiff's offense severity under Bureau of Prison (BOP)
policy. Plaintiff also contends the BOP placed a Public
Safety Factor of sex offender on him.
sole claim is that the Bureau of Prisons (BOP) has failed to
follow policy and modify his custody classification, which
fails to give rise to a cognizable claim under Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388
under [42 U.S.C.] § 1983 and those under Bivens
are identical save for the replacement of a state actor under
§ 1983 by a federal actor under Bivens.”
Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir.
1991). Section 1983 provides a cause of action for the
violation of Plaintiff's constitutional or other federal
rights by persons acting under color of state law. Nurre
v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009);
Long v. County of Los Angeles, 442 F.3d 1178, 1185
(9th Cir. 2006); Jones v. Williams, 297 F.3d 930,
934 (9th Cir. 2002). “Section 1983 is not itself a
source of substantive rights, but merely provides a method
for vindicating federal rights elsewhere conferred.”
Crowley v. Nevada ex rel. Nevada Sec'y of State,
678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v.
Connor, 490 U.S. 386, 393-94 (1989)) (internal quotation
marks omitted). Habeas relief extends to a person in custody
under the authority of the United States. 28 U.S.C. §
2241. Thus, a challenge to the execution of a sentence, e.g.,
to the manner, location, or conditions of a sentence's
execution is “maintainable only in a petition for
habeas corpus filed pursuant to 28 U.S.C. § 2241.”
Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1990)
Process Clause protects Plaintiff against the deprivation of
liberty without the procedural protections to which he is
entitled under the law. Wilkinson v. Austin, 545
U.S. 209, 221, 125 S.Ct. 2384 (2005). To state a claim,
Plaintiff must first identify the interest at stake.
Wilkinson, 545 U.S. at 221. Liberty interests may
arise from the Due Process Clause. Id. However, the
Due Process Clause itself does not confer on inmates a
liberty interest in avoiding more adverse conditions of
confinement. Id. at 221-22 (citations and quotation
marks omitted). Liberty interests created by prison
regulations are generally limited to freedom from restraint
which imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.
Wilkinson, 545 U.S. at 221(citing Sandin,
515 U.S. at 484) (quotation marks omitted); Myron v.
Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
instance, there is no support for a finding that Plaintiff
has a protected liberty interest in a particular
classification score. Myron, 476 F.3d at 718;
May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997).
That a higher security institution is more restrictive is not
sufficient, in and of itself, to demonstrate that it is a
condition which imposes atypical and significant hardship on
an inmate in relation to the ordinary incidents of prison
life. Id. In fact, Plaintiff's custody level was
reduced and he is now incarcerated at a low security
institution. (Compl. at p. 18; see also ECF No. 9.)
Plaintiff challenges the application of the BOP's
policies to his custody classification, not the conditions of
his place of incarceration. At the time Plaintiff filed this
action he was incarcerated in this Court's jurisdiction;
however, Plaintiff is currently incarcerated at the Federal
Correctional Institution in Big Spring, Texas. (ECF No. 9.)
To the extent Plaintiff is seeking relief by way of habeas
corpus, he must file such petition in the custodial court,
that is, the court of the district in which he is
incarcerated-the United States District Court for the
Northern District of Texas. 28 U.S.C. § 124. Thus, even
if this Court found a cognizable habeas claim, it lacks
jurisdiction to review such claim. See, e.g.,
Hassain v. Johnson, 790 F.2d 1420, 1420 (9th Cir.
1986) (no jurisdiction in California to address petition
where inmate incarcerated in Arizona); United States v.
Giddings, 740 F.2d 770, 771 (9th Cir. 1984) (no
jurisdiction in Washington to address petition where inmate
incarcerated in Kansas). Although the Court would generally
grant Plaintiff leave to amend in light of his pro se status,
amendment is futile in this instance because the deficiencies
cannot be cured by amendment. See Lopez v. Smith,
203 F.3d 1122, 1127 (9th Cir. 2000); Schmier v. U.S.
Court of Appeals for the Ninth Circuit, 279 F.3d 817,
824 (9th Cir. 2002) (recognizing “[f]utility of
amendment” as a proper basis ...