United States District Court, D. Nevada
CLIFFORD J. SCHUETT, Petitioner,
MR. KOEHN, et al., Respondents.
ORDER (ECF NO. 1)
P. GORDON, UNITED STATES DISTRICT JUDGE
Clifford Schuett initiated this habeas action by filing a
Petition for Writ of Habeas Corpus. ECF No. 1-1. This matter
is before me for initial review pursuant to the Rules
Governing Section 2254 Cases. For the reasons discussed below,
I dismiss this action.
Schuett failed to either pay the standard filing fee or file
an application for leave to proceed in forma
pauperis (IFP). He submitted a petition but he did not
pay the five dollar filing fee or submit an IFP application
for incarcerated litigants with the appropriate supporting
documentation. 28 U.S.C. § 1915(a); LSR 1-1, LSR 1-2. To
proceed in a civil action without paying the standard filing
fee, LSR 1-1 of the Local Rules of Practice and 28 U.S.C.
§ 1915 provide that a prisoner must submit the
court's form IFP application for incarcerated litigants.
But I will not require Schuett to pay the filing fee because
this action must be dismissed.
signed and dated his petition on October 12, 2019. ECF No.
1-1 at 1. He alleges he is in custody at the Nevada Southern
Detention Center, a private correctional facility in Pahrump,
Nevada, operated by Core Civic. Id. at 1. His
petition challenges Core Civic's denial of certain
medical devices, including a “medical mattress, ”
and asks the court to order Core Civic to provide such
devices to him.
judicial notice of the proceedings in Schuett's criminal
case in this district. See United States v. Clifford
James Schuett, Case No. 2:14-cr-0364-JAD. On September
30, 2019, District Judge Jennifer A. Dorsey granted a
petition for warrant for offender under supervision and
issued a warrant for Schuett's arrest. Id., ECF
No. 267. Schuett was appointed counsel and made an initial
appearance before the court. Id., ECF No. 276. He
was detained pending a hearing on revocation of supervised
release. Id. Over the next few weeks, Schuett filed
five pro se motions in his criminal case, including
a “motion for habeas corpus” alleging that Core
Civic staff denied him medical treatment and devices such as
a “medical mattress.” Id., ECF No. 285.
October 18, 2019, Judge Dorsey held a hearing on revocation
of supervised release. Id., ECF No. 291. The
government moved to dismiss the petition and asked that
Schuett's supervised release be modified instead. Judge
Dorsey granted the request and modified Schuett's
supervised release conditions, ordering him to reside in a
residential reentry center. After discussing his five pro
se motions on the record, Schuett agreed that his
motions were moot and Judge Dorsey denied them as moot.
to Habeas Rule 4, the assigned judge must examine the habeas
petition and order a response unless it “plainly
appears” that the petitioner is not entitled to relief.
See Valdez v. Montgomery, 918 F.3d 687, 693 (9th
Cir. 2019). This rule allows courts to screen and dismiss
petitions that are patently frivolous, vague, conclusory,
palpably incredible, or false. Hendricks v. Vasquez,
908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). The
court may also dismiss claims at screening for procedural
defects. See Boyd v. Thompson, 147 F.3d 1124, 1128
(9th Cir. 1998).
law provides two main avenues for relief on complaints
related to incarceration: (1) a petition for habeas corpus,
28 U.S.C. §§ 2241, 2254, 2255; and (2) a complaint
under the Civil Rights Act of 1871, 42 U.S.C. § 1983.
See Muhammad v. Close, 540 U.S. 749, 750 (2004). A
prisoner's claim is cognizable under federal habeas
statutes only if it falls within the “core” of
habeas. Nettles v. Grounds, 830 F.3d 922, 930 (9th
Cir. 2016) (en banc), cert. denied, 137 S.Ct. 645
(2017). If success on a habeas claim would not necessarily
lead to a petitioner's immediate or earlier release from
custody, the claim does not fall within “the core of
habeas corpus.” Id. at 931. Such claims must
be brought, if at all, under 42 U.S.C. § 1983 or
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the federal equivalent
of § 1983. “If a prisoner is not challenging the
fact of his confinement, but instead the conditions under
which he is being held, ” he must use a § 1983 or
Bivens theory. Glaus v. Anderson, 408 F.3d
382, 386 (7th Cir. 2005). “[P]risoners may not
challenge mere conditions of confinement in habeas
corpus.” Nettles, 830 F.3d at 933 (citing
Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir.
the petition fails to state a cognizable habeas claim.
Schuett asserts that Core Civic improperly denied his
requests for medical devices. If he were to succeed on this
claim, it would mean only that his conditions of confinement
would change. He would not be released from custody any
sooner. Furthermore, Schuett's petition is likely moot
since Judge Dorsey has now ordered him to reside in a
residential reentry center. See Case No.
2:14-cr-0364-JAD, ECF Nos. 291-292. Because success on
Schuett's claims would not lead to his immediate or
speedier release, they do not fall in the “core”
of habeas and must be brought, if at all, under § 1983
or Bivens. See Glaus, 408 F.3d at
decline to recharacterize Schuett's petition as a civil
rights complaint. When a habeas petition is amenable to
conversion on its face, federal courts may construe the
petition to plead a civil rights violation. Wilwording v.
Swenson, 404 U.S. 249, 251 (1971). However, habeas
actions and prisoner civil rights cases “differ in a
variety of respects-such as the proper defendant, filing
fees, the means of collecting them, and restrictions on
future filings-that may make recharacterization impossible
or, if possible, disadvantageous to the prisoner compared to
a dismissal without prejudice of his petition for habeas
corpus.” Nettles, 830 F.3d. at 935-36
(quotation omitted); see also United States v.
Seesing, 234 F.3d 456, 464 (9th Cir. 2000) (holding that
a court should not recharacterize a prisoner's pro se
filing as a federal habeas petition when doing so may be to
the prisoner's disadvantage). In this case, the petition
is not amenable to conversion on its face because it is not
clear that Schuett has named the proper defendant or whether
recharacterization would disadvantage him. I therefore
dismiss the petition without prejudice and instruct the Clerk
of Court to send Schuett a form Complaint for Violation of
Civil Rights (Prisoner): AO Pro Se 14.
Petitioner Clifford Schuett's Petition for Writ of Habeas
Corpus (ECF No. 1-1) is DISMISSED WITHOUT PREJUDICE.
certificate of appealability is DENIED as jurists of reason
would not find the dismissal of this action on these grounds
to be debatable or wrong.
Clerk of Court is instructed to enter final judgment and
close this case. The Clerk will also mail Schuett a copy of
the inmate application to proceed in forma pauperis
and form Complaint ...