Opinion
1:21-cv-00278 (Erie)
10-12-2021
BRYANT K. JOHNSON, Petitioner v. SUPT. MICHAEL CLARK, Respondent
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS RECOMMENDING DISMISSAL PURSUANT TO RULE 4 OF THE RULES GOVERNING HABEAS CORPUS PROCEEDINGS
HON. RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Petition for Habeas Corpus be DISMISSED pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases filed under 28 U.S.C. § 2254.
II. Report
Petitioner Bryant K. Johnson (“Johnson”) is an individual presently in the custody of the Pennsylvania Department of Corrections at its State Correctional Institution at Albion (“SCI-Albion”). On September 30, 2021, Johnson filed a pro se petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). ECF No. I. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires the summary dismissal of a Section 2254 petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...” 28 U.S.C. § 2254. Summary dismissal of the Petition is requited because the claims raised, and relief requested are not subject to redress in this habeas proceeding.
The Petition is considered filed as of the day it was signed and given to prison officials for mailing, September 30, 2021. See Jordan v. Tice, 2020 WL 2557944, at *1 (W.D. Pa. May 20, 2020), certificate of appealability denied sub nom. Jordan v. Superintendent Somerset SCI, 2020 WL 7383244 (3d Cir. Nov. 25, 2020).
The Petition was initially docketed on October 8, 2021 (ECF No. 1) and re-docketed later that day due to a scanning error at ECF No. 2. To avoid confusion, this Report and Recommendation refers to the Petition at ECF No. 2.
The Petition does not challenge a conviction or sentence, prison discipline resulting in loss of good behavior credit, or a parole decision. See generally ECF No. 2-1. Rather, the Petition challenges Johnson's conditions of confinement as they related to his having been housed with a Covid-19-positive cellmate (Ground One) and a claim alleging deliberate indifference to his serious medical needs relating to the treatment of his left leg (Grounds Two and Three). Id., pp. 1-5. By way of relief, he asks that this Court issue him a Writ of Habeas Corpus and direct that prison ... officials be precluded from shortening his “life span.” ECF No. 2, p. 15.
Generally, a state prisoner challenging the fact or duration of his state conviction or sentence on the grounds of alleged violations of federal rights, and seeking release from imprisonment as a result, does so by way of a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. See Preiser v. Rodrigue, 411 U.S. 475, 500 (1973); Learner v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). In contrast, the “proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody, ” is a civil rights action under 42 U.S.C. § 1983. Preiser, 411 U.S. at 500; see also Ferguson v. Haidle, 2021 WL 2682055, at *2 (M.D. Pa. June 30, 2021) (citing Learner, 288 F.3d at 542). Petitioner's allegations raise a civil rights claim based on the violations of the Eighth Amendment rather than an attack on the fact or duration of his confinement. Accordingly, the allegations of the Petition are not cognizable under 28 U.S.C. § 2254 but, instead, must be raised by way of a civil rights action under 42 U.S.C. § 1983.
While the Court may construe a flawed habeas petition as a civil rights action, see Willwording v. Swenson, 404 U.S. 249, 251 (1971), doing so in this case would be inappropriate for a number of reasons. First, the Petition was not accompanied by the $350 filing fee. It also was not accompanied by a declaration in support of a request to proceed without prepayment of the filing fee, a certified copy of Petitioner's trust fund account statement for the preceding six months, or an authorization by Petitioner to have the $350 filing fee deducted from his trust account pursuant to 28 U.S.C. § 1915(a)(2) & (b). Petitioner has not indicated that he is willing to incur the $350 filing fee as an assessment against his inmate trust account should this action proceed as a civil rights case. The Court should not assume that Petitioner desires to incur this expense by unilaterally converting the Petition to a civil rights complaint.
Second, Petitioner has not stated that he is willing to incur a potential “strike, ” within the meaning of 28 U.S.C. § 1915(g), should this action be converted to one brought under 42 U.S.C. § 1983 and he not prevail. Again, that choice should be his; the Court should not make it for him. And third, Petitioner has named only Superintendent Michael Clark as a Respondent and has not identified any official who was personally involved in the conduct alleged or the capacity in which any such person would be sued if the Petition were to be treated as a complaint under 42 U.S.C. § 1983. .
Based upon the foregoing, the Petition does not present any basis for habeas relief, and it is not appropriate to convert this matter to a § 1983 action. Accordingly, it is recommended that judgment be entered dismissing the instant Petition without prejudice. In addition, pursuant to Rule 11 (a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Undersigned has considered whether a Certificate of Appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Where habeas relief has been rejected, a Certificate of Appealability should issue only if the petitioner has “demonstratefd] that reasonable jurists would find the district court's assessment of the constitutional claims debatable or • \
wrong.” Id. Because reasonable jurists of reason would not find it debatable whether the Petitioner's claims should be denied for the reasons set forth above, the Court should decline to issue a Certificate of Appealability in this case.
III. Notice to Parties Concerning Objections
In accordance with the Magistrate Judge's Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections within fourteen (14) days of the date of submission of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court for the Western District of Pennsylvania, 17 South Park Row, Erie, Pennsylvania, 16501. Failure to timely file objections will waive the right to appeal.Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their Response to the objections within fourteen (14) days thereafter in accordance with Local Rule 72.D.2.
Submitted for the Court's further consideration this 12th day of October, 2021.