(HC) Haapaniemi v. Fed Bureau of Prisons

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA BJORN ERIK HAAPANIEMI, Case No. 1:23-cv-00074-HBK (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO FED. BUREAU OF PRISONS, UNITED DISMISS FIRST AMENDED PETITION FOR STATES OF AMERICA, FAILURE TO STATE A CLAIM1 Respondents. (Doc. No. 11) FOURTEEN-DAY OBJECTION PERIOD ORDER DIRECTING CLERK TO PROVIDE 18 PETITIONER WITH CIVIL RIGHTS COMPLAINT FORM 21 Petitioner Bjorn Erik Haapaniemi, a federal prisoner, is proceeding pro se on his First Amended Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 11).

23 Although submitted on a habeas corpus form, Petitioner acknowledges that his claim involves “jail or prison conditions” and, as such, is properly pursued via either a claim under the Federal Torts Claim Act or a civil rights complaint under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392-97 (1971). Thus, the undersigned recommends This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022).

1 that the First Amended Petition be dismissed for failure to state a cognizable habeas claim.

2 I. APPLICABLE LAW AND ANALYSIS 3 A. The Claims Do Not Spell Earlier Release 4 This matter is before the Court for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases.2 See R. Governing Section 2254 Cases, Rule 1(b); 28 U.S.C. § 2243. Under Rule 4, the Court must dismiss a habeas petition if it “plainly appears” that the petitioner is not entitled to relief. If a prisoner’s claim “would necessarily demonstrate the invalidity of confinement or its duration,” a habeas petition is the appropriate avenue for the claim. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). In contrast, if a favorable judgment for the petitioner would not “necessarily lead to his immediate or earlier release from confinement,” he may assert his claim only under 42 U.S.C. § 1983. Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016).3 13 The First Amended Petition asserts two grounds for relief. (Doc. No. 11 at 2-3). To the extent discernable, Petitioner claims that (1) he has been improperly “sent to a GP yard” where “he cannot possibly participate in anything but SHU placement” and (2) he is not receiving proper medical treatment. (Id.). Because the success of either claim would not lead to Petitioner’s immediate or earlier release from confinement, the undersigned finds the Petition fails to state a cognizable habeas claim. Instead, because Petitioner is a federal prisoner his claims should be brought via the Federal Torts Claim Act4 or via a civil action under Bivens. Thus, the undersigned recommends that the First Amended Petition be dismissed for lack of federal habeas The Rules Governing Section 2254 Cases may be applied to petitions for writ of habeas corpus other than those brought under § 2254 at the Court’s discretion. See Rule 1 of the Rules Governing Section 2254 Cases. Civil Rule 81(a)(2) provides that the rules are “applicable to proceedings for . . . habeas corpus . . .

23 to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice of civil actions.” Fed. R. Civ. P 81(a)(2).

24 3 In Nettles, the Ninth Circuit, in analyzing Supreme Court precedent distinguishing relief available via § 1983 or habeas corpus, concluded if a state prisoner’s claim does not lie at “the core of habeas corpus,” meaning where success on a claim would not necessarily lead to an immediate or speedier release, then the claim “may not be brought in habeas corpus but must be brought, ‘if at all,’ under § 1983.” Id. at 931 (quoting Preiser v. Rodriguez, 411 U.S. 475, 487 (1973); 93 S. Ct. 1827 (1973)); Skinner v. Switzer, 562 U.S. 523, 535 (2011).

27 4 Although generally a federal prisoner may bring both a FTCA and Bivens claim in the same lawsuit, a FTCA claim is the only remedy for injuries caused by action so the United States Public Health Service physician under 42 U.S.C. § 233(a). Hui v. Castaneda, 559 U.S. 799 (2010).

1 jurisdiction.

2 B. Conversion to Civil Rights Complaint Not Appropriate 3 Next, the undersigned considers whether to convert the Petition into a civil rights complaint. “If the complaint is amenable to conversion on its face, meaning that it names the correct defendants and seeks the correct relief, the court may recharacterize the petition so long as it warns the pro se litigant of the consequences of the conversion and provides an opportunity for the litigant to withdraw or amend his or her complaint.” Nettles, 830 F.3d at 936 (remanding case to district court to consider claim under § 1983). When filing a Bivens claim5 or § 1983 claim, courts require plaintiffs to “plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).

16 The undersigned finds the First Amended Petition is not properly convertible to a Bivens civil rights complaint for two reasons. First, Petitioner names only the Federal Bureau of Prisons as Respondent. A Bivens action may only be brought against an individual defendant in his individual capacity, not in his official capacity. Petitioner does not identify as respondents any persons who allegedly committed the affirmative acts or omissions that allegedly violated his rights. Second, automatic conversion would run counter to the Prison Litigation Reform Act.

22 The filing fee for a habeas petition is $5 in contrast to the $350 filing fee assessed to prisoners if granted in forma pauperis status in a civil action. Further, under the Prisoner Litigation Reform Act, a prisoner is required to pay the full filing fee, even if he is granted in forma pauperis status, by way of deductions from the prisoner’s trust account. See 28 U.S.C. § 1915(b)(1). If the Court did convert this action to a § 1983 action, Petitioner would face the larger filing and The Supreme Court generally recognizes that “a Bivens action is the federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.” Hartman v. Moore, 547 U.S. 250, 254 n. 2 (2002).

1 administrative fees—which he might prefer not to do.

2 While the undersigned finds the First Amended Petition is not amendable to conversion, Petitioner is free to file a civil action under the FTCA or Bivens in a separate action, if appropriate. In doing so, Petitioner is advised that a complaint must contain a short and plain statement that plaintiff is entitled to relief, Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not require detailed allegations, but legal conclusions do not suffice. See Iqbal, 556 at 678. If the allegations “do not permit the court to infer more than the mere possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 11 1024, 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc) (citations omitted). The complaint must state what actions each named defendant took that deprived plaintiff of constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Further, a plaintiff must identify what relief he seeks on his complaint.

17 II. RECOMMENDATION AND ORDER 18 Accordingly, it is ORDERED: 19 1. The Clerk of Court is directed to send Petitioner a civil rights complaint form with these Findings and Recommendations.

21 2. The Clerk of Court is directed to assign this case to a District Judge for the purposes of reviewing these findings and recommendations.

23 It is further RECOMMENDED: 24 The First Amended Petition be dismissed for failure to state a cognizable habeas claim.

25 (Doc. No. 11).

26 NOTICE TO PARTIES 27 These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) | days after being served with these findings and recommendations, a party may file written | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s | Findings and Recommendations.” Parties are advised that failure to file objections within the | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). "| Dated: __February 17, 2023 Wiha Th foare4 Hack 8 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE