Opinion
No. CV 20-3708-SB (AGR)
03-26-2021
MICHAEL LUSTIG, Petitioner, v. WARDEN, FCI LOMPOC, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the magistrate judge's Report and Recommendation. No objections to the Report have been filed. The Court accepts the findings and recommendation of the Magistrate Judge. In doing so, the Court notes - as stated in the Report and Recommendation - that the petitioner does not seem to argue in his opposition to the motion to dismiss that jurisdiction lies under 28 U.S.C. § 2241 to address his first ground for relief under the Fifth and Eighth Amendments. See Opp. 4 ("As stated above, this Court has jurisdiction over the application of 34 U.S.C. § 60541(g), which is the issue properly before the Court."). And the petition itself focuses on specific conditions of confinement that allegedly raised the risk of transmission of the coronavirus without claiming that the conditions were not subject to correction (thereby resulting in release as the only remedy). (Petition 13-16.)
Even the Sixth Circuit, when recognizing a potential condition-related claim under section 2241, seemed to distinguish between (a) claims asserting that the only remedy for the constitutional violation is release and (b) claims allowing for correction of the unconstitutional conditions. Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) ("Petitioners here, however, contend that the constitutional violations occurring at [the prison] as a result of the pandemic can be remedied only by release."). --------
IT IS ORDERED that Respondent's motion to dismiss the Petition for Writ of Habeas Corpus is granted and this action is dismissed for lack of jurisdiction. DATED: March 26, 2021
/s/_________
STANLEY BLUMENFELD, JR.
United States District Judge