Summary
holding that district court did not err in treating conditions of confinement claims as arising under Bivens, rather than § 2241
Summary of this case from Gelazela v. WhiteOpinion
No. 11-15735 D.C. No. 4:10-cv-00264-FRZ
04-20-2012
PAUL EDWARD SHOOK, Jr., Petitioner - Appellant, v. LIONEL C. APKER, Warden, Respondent - Appellee.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Paul Edward Shook, Jr., a federal prisoner, appeals pro se from the district court's judgment dismissing his 28 U.S.C. § 2241 habeas petition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Shook contends the district court erred by treating his claims of inadequate medical care as arising under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), rather than section 2241. We disagree. Despite the relief he seeks, Shook's claims concern the conditions of his confinement and are properly brought under Bivens.
The district court acted within its discretion when it dismissed Shook's petition without prejudice for failure to comply with the court's order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992).
AFFIRMED.