Opinion
Case No. CIV-18-871-SLP
10-12-2018
PAUL E. ESTRELLA VILOTTA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Paul Vilotta, a federal prisoner proceeding pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1). United States District Judge Scott L. Palk has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). On initial review, the Court should DISMISS the petition based on lack of jurisdiction.
I. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to "summarily dismiss [a] petition without ordering a responsive pleading," Mayle v. Felix, 545 U.S. 644, 656 (2005), "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct.
The district court may apply any or all" of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), R. Governing § 2254 Cases in U.S. Dist. Ct. --------
II. PROCEDURAL BACKGROUND
Petitioner smuggled undocumented aliens from Ecuador into the United States for profit and was charged with alien smuggling in case number EP-15-CR-1603-KC-1 in the Western District of Texas, El Paso Division. (ECF No. 2:1). On August 13, 2015, Mr. Villota was arrested and was detained without bond at various locations, including at the West Texas Detention Center (WTDC) in Sierra Blanca, Texas. (ECF Nos. 1; 2:1). Ultimately, Petitioner plead guilty to conspiracy to encourage and induce aliens to come to the United States for financial gain, and causing serious bodily injury. (ECF No. 2:1). He was sentenced on September 6, 2016, to seventy-two months of imprisonment and is now incarcerated at Great Plains Correctional Facility in Hinton, Oklahoma. (ECF Nos. 1:1; 2:2).
III. PETITIONER'S CLAIMS
In the Petition, Mr. Villota complains that while he was a pretrial detainee at WTDC, officials there violated the Eighth Amendment by:
• Failing to provide him with proper medical care;
• Failing to protect him from harm while inside the facility;
• Providing inadequate conditions of confinement; and
• Failing to provide him with a proper diet. (ECF Nos. 1:6-7; 1-1:1-6). As a remedy, Petitioner asks the Court to grant him "hardship credit" on his current sentence—two days credit for every day served at the WTDC. (ECF Nos. 1:8; 1-1:1, 5, 6).
IV. DISMISSAL OF THE PETITION
Attacks on the execution of a sentence trigger Section 2241 when they involve the duration of confinement. See McIntosh v. United States Parole Commission, 115 F.3d 809, 812 (10th Cir. 1997). But challenges to the conditions of confinement "generally do not arise under § 2241." See Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000) ("We have . . . recognized that federal claims challenging the conditions of his confinement generally do not arise under § 2241." (citations omitted)). Mr. Villota alleges that he was subject to Eighth Amendment violations while a pretrial detainee at the WTDC. But this allegation does not impact the fact or duration of the Petitioner's confinement for purposes of 28 U.S.C. § 2241—even though Petitioner has sought relief in the form of "credit" to his sentence.
The Tenth Circuit Court of Appeals addressed a similar issue in In Rios v. Commandant, U.S. Disciplinary Barracks, 100 F. App'x 706 (10th Cir. 2004). In Rios, the petitioner filed a § 2241 petition, asserting, in part, that prison officials: (1) violated his due process rights by classifying him as a maximum custody inmate without a hearing and (2) violated his Eighth Amendment right to be free from cruel and unusual punishment by denying him outdoor exercise and "adequate living space" while he was in maximum custody. Rios, 100 F. App'x at 707. In his prayer for relief, the petitioner sought an administrative sentence credit of 10 days for each day held unlawfully in segregation. Id.
The district court concluded that the petitioner's allegations should have been be raised in a civil rights complaint rather than a § 2241 petition, stating:
The crux of [the petitioner's] factual allegations is a challenge to his prolonged administrative segregation and its severe conditions. His requests for relief in the form of sentence credit for time spent in segregated confinement and without prison employment are . . . not supported by any legal authority. Such claims of entitlement to relief not warranted by the allegations in a pro se pleading do not transform the matter into a habeas corpus action.Id. The district court dismissed the petition without prejudice to the filing of a civil rights complaint challenging the condition of the petitioner's confinement. In his appellate brief, the petitioner argued that "administrative sentence credit" constituted an appropriate request for relief in his § 2241 proceeding, but the Tenth Circuit disagreed, stating:
Petitions under § 2241 are used to attack the execution of a sentence. . . . [A]lthough a § 2241 attack on the execution of a sentence may challenge some matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters, this does not make § 2241 actions like condition of confinement lawsuits, which are brought under civil rights laws. A habeas corpus proceeding attacks the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement. In contrast, a civil rights action . . . attacks the conditions of the prisoner's confinement and requests monetary compensation for such conditions.
. . .
[The petitioner's] allegations address the conditions of his confinement and thus should be raised in a civil rights action. Although in his prayer for relief [the petitioner] seeks a ten-day sentence credit for each day he has allegedly served improperly in maximum custody, he provides no support for his contention that he would be entitled to such relief if he prevailed on his substantive claims. In our view, a prisoner may not transform a civil rights action involving the conditions of his confinement
into a § 2241 petition merely by seeking sentencing relief in a manner not connected to his substantive claims.Id. at 708.
The Court should conclude that Rios is persuasive. Here, the crux of Mr. Villota's petition is that prison officials at the WTDC violated his Eighth Amendment rights through a failure to provide medical care and a proper diet, a failure to protect him from harm, and poor conditions of confinement. These Eighth Amendment claims are properly asserted in a claim pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Palma-Salazar v. Davis ("a prisoner who challenges the conditions of his confinement must do so through a [Bivens] action."); United States v. Loera, No. CR 13-1876 JB, 2017 WL 3098257, at *27 (D.N.M. June 22, 2017) ("Federal pretrial detainees may challenge their conditions of confinement by filing Bivens actions[.]"). Accordingly, the Court should dismiss Mr. Villota's § 2241 petition based on a lack of jurisdiction. The dismissal should be without prejudice.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
It is recommended that the Court DISMISS Mr. Villota's Petition for Writ of Habeas Corpus (ECF No. 1).
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by October 29, 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on October 12, 2018.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE