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Ioane v. Puentes

United States District Court, E.D. California

July 18, 2019

MICHAEL S IOANE, Petitioner,
v.
GEORGINA PUENTES, Respondent.

          ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

          JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a federal prisoner currently incarcerated at the Taft Correctional Institution. In his petition for a writ of habeas corpus, the Court finds that Petitioner fails to establish grounds for habeas corpus relief, and that the proper avenue for his complaints is a Bivens action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Accordingly, the Court will recommend that the petition be DISMISSED without prejudice to filing a Bivens action.

         BACKGROUND

         In this action, Petitioner challenges the outcome of a prison disciplinary proceeding regarding an incident that occurred on November 29, 2018, after Petitioner arrived late for a dental appointment. (Doc. 1 at 6-7.) After the appointment that same day, there was an interaction between Petitioner, Ms. Hall (dental hygienist), Ms. Hicks (registered nurse), Sergeant J. John and correctional officers, where there appeared to be a misunderstanding about things that were said between these individuals. (Id. at 6.) Petitioner described the interaction as an “admonishment, ” and “verbally voiced [his] grievance about how [he] was spoken to and treated.” (Id.)

         On November 30, 2018, Petitioner received an incident report for violating BOP prohibited act codes 312 (insolence towards a staff member) and 310 (unexcused absence). (Id. at 14.) On December 6, 2018, Petitioner was found guilty at his first unit disciplinary hearing. (Id. at 7.) However, this hearing was vacated, and Petitioner was notified another hearing would be conducted. (Id.) On December 13, 2018, Ms. Hicks prepared a new incident report, which was for the code 312 violation. (Id. at 8.) On the same day, Ms. Hall prepared an additional incident report, which was for the code 310 violation. (Id.) Copies of these incident reports (prepared on December 13, 2018) were served on Petitioner at the third and forth unit disciplinary hearings. (Id.)

         Petitioner attempted to resolve the matter through informal resolution. (Id. at 3.) Petitioner indicates that he has had four disciplinary hearings resulting from this incident. (Id. at 3-4.) Petitioner now challenges the outcome of the prison disciplinary proceeding. Specifically, Petitioner argues that the charges described in the incident reports were the result of an arbitrary, capricious and retaliatory disciplinary process and argues that staff members failed to substantially comply with regulations on inmate discipline. (Id. at 2-3.) Petitioner claims that he has “suffered grievous losses as a result of the punishments and continue[s] to suffer, ” and most recently, he was “denied a Social Furlough, specifically because of this Incident Report.” (Id. at 11, 23.)

         DISCUSSION

         A. Preliminary Review of Petition

         Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). Accordingly, the Court should exercise its authority under Rule 4 and dismiss the petition.

         B. Exhaustion

         Before filing a petition for writ of habeas corpus, a federal prisoner challenging any circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Thus, “because exhaustion is not required by statute, it is not jurisdictional.” Id. If Petitioner has not properly exhausted his claims, the district court, in its discretion, may either “excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his administrative remedies before proceeding in court.”

         The first step in seeking administrative remedies is a request for informal resolution. 28 C.F.R. § 542.13. When informal resolution procedures fail to achieve sufficient results, the BOP makes available to inmates a formal three-level administrative remedy process: (1) a Request for Administrative Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a Regional Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the geographic region in which the inmate's institution is located; and (3) a Central Office Administrative Remedy Appeal (“BP-11”) filed with the Office of General Counsel. 28 C.F.R. § 542.10 et seq.

         Petitioner indicates that he has filed administrative appeals at all levels. The petition indicates that his appeals were denied at the informal, institutional and regional levels. (Doc. 1 at 3.) However, the petition indicates that Petitioner has not received a response to his fourth appeal to the national inmate appeals administration. (Id. at 4.) Thus, for purposes of this order, the Court assumes without deciding that the claims have been exhausted.

         C. ...


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