Opinion
Case No. 18-cv-03616-VC (PR)
09-27-2018
JOYCE SIMMONS, Petitioner, v. W. Z. JENKINS, II, Respondent.
ORDER OF DISMISSAL WITHOUT PREJUDICE; DENYING CERTIFICATE OF APPEALABILITY
Federal prisoner Joyce Simmons, incarcerated at the Federal Correctional Institute in Dublin, California, has filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2241. She has paid the $5.00 filing fee charged for habeas petitions.
The petition alleges that having to wear an altered jumper dress below the ankle with a long-sleeved blouse and brown t-shirt underneath is an atypical and significant hardship in relation to the ordinary incidents of prison life because of the 100 degree heat in Dublin. Simmons seeks an injunction directing the warden to issue her four different uniforms, including pants and a short-sleeved blouse.
Under § 2241, habeas relief is available to a federal prisoner if he or she can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(1) & (3). Simmons is not challenging the fact or duration of her confinement, but is challenging the conditions of her confinement. Claims regarding conditions of confinement are properly brought in a civil rights action, not a habeas proceeding. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); see also Greenhill v. Lappin, 376 Fed. Appx. 757, 757 (9th Cir. 2010) (appropriate remedy for federal prisoner's conditions of confinement claims lies in a civil rights action under Bivens); Nostratis v. Surgue, 2009 WL 462732 at *1 (W.D. Cal. Feb. 23, 2009) (claims for transfer to another facility should be raised in Bivens action not in § 2241 habeas petition); Evans v. United States Penitentiary, 2007 WL 4212339 at *1 (E.D. Cal. Nov 27, 2007) (no habeas relief under § 2241 for claim of inadequate medical care which concerns conditions of confinement).
CONCLUSION
Based on the foregoing, this case is dismissed without prejudice to filing a Bivens civil rights action. Because reasonable jurists would not find the result debatable, a certificate of appealability is denied. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Clerk is directed to issue a separate judgment and close the file.
IT IS SO ORDERED. Dated: September 27, 2018
/s/_________
VINCE CHHABRIA
United States District Judge