United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a federal prisoner proceeding pro se, has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
and has paid the $5.00 filing fee. However, though styled as
a § 2241 petition, petitioner's claims should have
been brought in an action under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
alleges that his Eighth Amendment rights were violated when
he was held in the security housing unit for seven weeks;
that he was denied due process in connection with a
disciplinary charge, of which he was found not guilty; and
that he is being subject to harassment and retaliation. ECF
No. 1 at 6-11. Where a prisoner is challenging the fact or
duration of his confinement, the proper vehicle is a petition
under § 2241. Tucker v. Carlson, 925 F.2d 330,
332 (9th Cir. 1991) (citations omitted). Allegations of civil
rights violations must be brought in a Bivens
action. Id. (citations omitted). In this instance,
petitioner does not challenge the legality or duration of his
confinement, but instead challenges the conditions of his
will be given an opportunity to amend the petition to convert
this action into a civil rights complaint under
Bivens. If petitioner chooses not to amend the
petition and convert this into a civil right action, the
petition will be dismissed for lack of habeas jurisdiction.
If petitioner chooses to convert the petition into a
Bivens action, he is advised that he will be
required to either (1) pay the $400.00 filing and
administrative fees, minus the $5.00 he has already paid, or
(2) submit an application to proceed in forma pauperis. If
leave to file in forma pauperis is granted, petitioner will
still be required to pay the $350.00 filing fee,
will be allowed to pay it in installments.
petitioner chooses to amend the petition and convert this
action to a Bivens action, he should keep in mind
the following legal standards.
extent petitioner seeks to allege retaliatory harassment in
violation of his First Amendment rights:
[w]ithin the prison context, a viable claim of First
Amendment retaliation entails five basic elements: (1) An
assertion that a state actor took some adverse action against
an inmate (2) because of (3) that prisoner's protected
conduct, and that such action (4) chilled the inmate's
exercise of his First Amendment rights, and (5) the action
did not reasonably advance a legitimate correctional goal.
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.
2005) (footnote and citations omitted).
maintain an Eighth Amendment claim, a prisoner must show that
prison officials were deliberately indifferent to a
substantial risk of harm to his health or safety. Morgan
v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).
However, “[n]ot every governmental action affecting the
interests or well-being of a prisoner is subject to Eighth
Amendment scrutiny.” Whitley v. Albers, 475
U.S. 312, 319 (1986). To establish cruel and unusual
punishment in violation of the Eighth Amendment, a prisoner
must demonstrate “unnecessary and wanton infliction of
pain.” Id. (citation and internal quotation
respect to petitioner's claim that he was placed in the
security housing unit during the investigation into the
[f]or placement in administrative segregation, an inmate must
“receive some notice of the charges against
him, ” Hewitt v. Helms, 459 U.S. 460, 476, 103
S.Ct. 864, 74 L.Ed.2d 675 (1983) (emphasis added), or
“notice of the factual basis leading to
consideration” for confinement, Wilkinson v.
Austin, 545 U.S. 209, 225-26, 125 S.Ct. 2384, 162
L.Ed.2d 174 (2005). The notice must be delivered
“within a reasonable time following an inmate's
transfer” in order to be effective in helping the
inmate prepare a defense at his hearing. See Hewitt,
459 U.S. at 476 n.8, 103 S.Ct. 864; Toussaint v.
McCarthy, 801 F.2d 1080, 1100 & n.20 (9th Cir. 1986)
(“Prison officials must hold an informal nonadversary
proceeding within a reasonable time after the prisoner is
Saavedra v. Scribner, 482 F. App'x 268, 270-71
(9th Cir. 2012).
petitioner claims he was found not guilty of the charges, it
appears unlikely that he will be able to state a claim for
violation of his due process rights in relation to the
disciplinary proceedings. However, the court will nonetheless
provide him with the applicable legal standard. “Prison
disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant
in such proceedings does not apply.” Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). However, an inmate
subject to disciplinary sanctions that include the loss of
good time credits must receive (1) twenty-four-hour advanced
written notice of the charges against him, id. at
563-64; (2) a written statement by the fact finder as to the
evidence relied on and the reasons for the action,
id. at 564-65; (3) an opportunity to call witnesses
and present documentary evidence where doing so “will
not be unduly hazardous to institutional safety or
correctional goals, ” id. at 566; (4)
assistance at the hearing if he is illiterate or if the
matter is complex, id. at 570; and (5) a
sufficiently impartial fact finder, id. at 570-71. A
finding of guilt must also be “supported by some
evidence in the record.” Superintendent v.
Hill, 472 U.S. 445, 454 (1985).
“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory
of respondeat superior.” Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009) (citations omitted).
Accordingly, “a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the ...