Case 2:21-cv-06991-CAS-KES Document 36 Filed 10/27/22 Page 1 of 5 Page ID #:327

O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT O. DINKINS, ) Case No. 2:21-cv-06991-CAS (KES) ) 12 ) Petitioner, ) ORDER ACCEPTING FINDINGS 13 ) AND RECOMMENDATIONS OF ) v. ) UNITED STATES MAGISTRATE 14 ) JUDGE ) 15 UNITED STATES, et al., ) 16 ) ) Respondents. ) 17 ) 18 19 Pursuant to

, the Court has reviewed the records and files 20 herein, including the second amended habeas petition (Dkt. 21, “Petition”), 21 respondent’s motion to dismiss the second amended habeas petition (Dkt. 24), 22 respondent’s supplemental brief (Dkt. 31), petitioner’s response to the motion to 23 dismiss (Dkt. 28), petitioner’s motion for leave to supplement the Petition (Dkt. 24 30); petitioner’s response to respondent’s supplemental brief (Dkt. 32), the Report 25 and Recommendation of the United States Magistrate Judge (Dkt. 33, “Report”), 26 27 28 Case 2:21-cv-06991-CAS-KES Document 36 Filed 10/27/22 Page 2 of 5 Page ID #:328

1 and petitioner’s Objections to the Report (Dkt. 35, “Objection”).1 Pursuant to 28

(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo 3 review of the matters to which objections have been stated. Petitioner’s assertions 4 and arguments have been reviewed carefully. The Court, however, concludes that 5 nothing set forth in the Objection or otherwise in the record for this case affects, 6 alters, or calls into question the findings and analysis set forth in the Report. 7 Therefore, the Court concurs with and accepts the findings and recommendations 8 of the Magistrate Judge. 9 Petitioner is a prisoner in the custody of the federal Bureau of Prisons 10 (“BOP”) who is currently housed at the U.S. Penitentiary (“USP”) in Lompoc, 11 California. This case has a long procedural history, and presently before the Court 12 is petitioner’s second amended habeas petition.2 In the second amended petition, 13 14

15 1 The Magistrate Judge recommends that the Court grant petitioner’s motion 16 for leave to supplement his petition (Dkt. 30) and petitioner’s responses to the 17 motion to dismiss and respondent’s supplemental brief (Dkts. 28, 32). Report at 3. 18 The Court hereby does so. 19 2 The Court also notes that petitioner has brought numerous rejected habeas 20 petitions in the sentencing court of the Eastern District of Missouri. See Dinkins v. 21 United States, No. 4:17-cv-2296-CAS (E.D. Mo.); Dinkins v. United States, No. 22 18-3334 (8th Cir. 2019) (denying application to file a success motion under 28 23 U.S.C. SEC. 2255); Dinkins v. United States, No. 4:19-cv-1688-CAS (E.D. Mo.); 24 Dinkins v. United States, No. 4:19-cv-1839-CAS (E.D. Mo.); Dinkins v. United 25 States, No. 4:19-cv-1920-CAS (E.D. Mo.); Dinkins v. United States, No. 4:19-cv- 26 2903-ERW (E.D. Mo.); Dinkins v. United States, No. 4:20-cv-133-AGF (E.D. 27 Mo.); Dinkins v. United States, No. 4:21-cv-517-ERW (E.D Mo.); Dinkins v. 28 United States, No. 4:21-cv-1437-ERW (E.D. Mo.). 2 Case 2:21-cv-06991-CAS-KES Document 36 Filed 10/27/22 Page 3 of 5 Page ID #:329

1 petitioner alleges that his incarceration at USP Lompoc is unconstitutional due to 2 the threat of COVID-19 and his health conditions that put him at high risk of death 3 or serious illness if he contracts the disease. See generally Dkt. 21 (“Petition”). 4 Respondent moved to dismiss the petition on the basis that petitioner’s 5 COVID-19-related habeas claim should be raised “in a civil rights complaint” 6 seeking appropriate relief. Dkt. 24. In response, the Magistrate Judge requested 7 supplemental briefing as to the preclusive effect of the litigation in Torres v. 8 Milusnic, 20-cv-04450-CBM-PVC (C.D. Cal.), a “putative class action on behalf 9 of all inmates at FCC Lompoc over the age of 50 or with certain underlying health 10 conditions, alleging that Lompoc officials were failing to adequately protect them 11 from COVID-19.” See Report at 2, 9. In the Report, the Magistrate Judge noted 12 that a “district court may properly dismiss an individual complaint because the 13 complainant is a member in a class action seeking the same relief.” Report at 6 14 (citing Pride v. Correa,

(9th Cir. 2013) (internal quotation 15 omitted)). Here, the Magistrate Judge recommended dismissing petitioner’s 16 habeas claim as duplicative of the relief sought in Torres, of which petitioner is 17 already a class member. Specifically, the Magistrate Judge described how 18 petitioner was already reviewed for (and denied) home confinement in connection 19 with the preliminary injunction issued in Torres requiring prison officials to 20 develop a process for review as expanded by the CARES Act.

at 10–11. There 21 is currently a settlement pending review by the court in Torres litigation (which the 22 Magistrate Judge identified petitioner had not objected to), with a fairness hearing 23 24 set for October 4, 2022 at the time of the Magistrate Judge’s Report. Id. at 12. 25 Petitioner’s Objection essentially raises two points: (1) that the Objection is 26 also an objection to the settlement in Torres; and (2) that the Magistrate Judge and 27 Court err by refusing to overturn the prison’s review denying petitioner home 28 confinement. 3 Case 2:21-cv-06991-CAS-KES Document 36 Filed 10/27/22 Page 4 of 5 Page ID #:330

1 The Court finds and concludes that petitioner’s objections are without merit. 2 To the extent petitioner wishes to object to the settlement in Torres, he must do so 3 through within the context of the Torres lawsuit itself, not in this separate litigation 4 for a writ of habeas corpus. This reasoning also applies to the extent petitioner in 5 his Objection challenges the home confinement review conducted pursuant to the 6 injunction in the Torres litigation. 7 Moreover, while petitioner does not raise specific challenges to the 8 Magistrate Judge’s analysis that his petition is duplicative of the Torres action, the 9 Court in its de novo review agrees with the Magistrate Judge’s recommendation 10 that the petitioner be dismissed on that basis. That is, petitioner’s habeas claim, 11 which alleges that his incarceration at USP Lompoc is unconditional due to the 12 threat of COVID-19 and makes numerous specific references to the evidence and 13 filings in the Torres litigation, is duplicative of the Torres litigation of which 14 petitioner “is a member in a class action seeking the same relief.” Pride v. Correa, 15

; see, e.g., Dkt. 32 at 3 (response to Respondent’s supplemental 16 brief, arguing, “since Petitioner is similar to Torres[,] evidence[] need not be 17 shown other than what’s already submitted, allegations, ex[hibits], etc.”), cited in 18 Report at 12–13. 19 Having completed its review, the Court accepts the findings and 20 recommendations set forth in the Report. In accordance with the foregoing, the 21 Court GRANTS petitioner’s motion to supplement, Dkt. 30; GRANTS 22 respondent’s motion to dismiss, Dkt. 24; and DISMISSES the Second Amended 23 24 Petition, Dkt. 21, without prejudice to petitioner pursuing his habeas claim in 25 Torres, 20-cv-04450-CBM-PVC (C.D. Cal.), but without further leave to amend in 26 this action. 27 As a federal prisoner proceeding under

, petitioner is not 28 required to obtain a certificate of appealability (“COA”) in order to appeal to the 4 ase 2:21-cv-06991-CAS-KES Document 36 Filed 10/27/22 Page5of5 Page ID #:33

I United States Court of Appeals in this case. See Harrison v. Ollison,

, 2 958 (9th Cir. 2008) (holding that the plain language of

(c)(1) does 3 not require federal prisoners bringing § 2241 petitions to obtain a COA in order to 4 appeal, unless the § 2241 petition “is merely a ‘disguised’ § 2255 petition”); see 5 e.g., Tomlinson v. Caraway, No. 14-cv-020094-VBF-KK,

131448 at *2,

at *1 (C.D. Cal. Sept. 16, 2014) (adopting report and recommendation and noting that petitioner in federal custody was not required to obtain a COA to appeal the denial of his § 2241 petition). 10 Dated: October 27, 2022 11 Mantes drgh— D CHRISTINA A.SNYDER United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28