ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO STATE A COGNIZABLE CLAIM

(ECF NO. 1)

CLERK TO CLOSE CASE

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2241. Respondent is represented by Christopher D. Baker of the United States Attorney's Office for the Eastern District of California. The matter is before the undersigned based on the consent of all parties pursuant to 28 U.S.C. § 636(c). (ECF Nos. 8, 10.)

Petitioner's claims are somewhat unclear. He checked a box on the form petition indicating the petition concerned a prison disciplinary action or other action resulting in lost gain time credits. (ECF No. 1 at 2.) However, the petition contains no facts in this regard. Instead, the facts alleged pertain to his other ground for relief, denial of access to the law library and the courts in violation of his constitutional rights.

It appearing that Petitioner's claims are not cognizable in habeas corpus, he was ordered to show cause why the action should not be dismissed. (ECF No. 6.) He was specifically warned that the failure to respond could result in dismissal of the action. Nonetheless, Petitioner did not respond and the time for doing so has passed.

I. Discussion

A. Procedural Grounds for Summary Dismissal

Rule 4 of the Rules Governing Section 22541 Cases provides in pertinent part:

The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

B. Failure to State Cognizable Claim

Challenges to the fact or duration of confinement are brought by petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 or § 2241; challenges to conditions of confinement are brought pursuant to 42 U.S.C. § 1983, see Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), or pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the "federal analogue" to § 1983. Hartman v. Moore, 547 U.S. 250, 254, 255 n.2 (2006). A Bivens action is the proper remedy for a federal prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody. See Prieser, 411 U.S. at 499; Bivens, 403 U.S. 388.

Here, it appears that a petition for writ of habeas corpus brought pursuant to § 2241 is not the proper vehicle for the claims Petitioner presents. Petitioner challenges the denial of his access to the law library and the courts. These claims do not implicate the fact or duration of his confinement. Thus, Petitioner has not stated a cognizable habeas claim pursuant to § 2241.

A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). Petitioner was afforded the opportunity to file an amended petition but did not do so.

C. Conversion to Civil Rights Action

In an appropriate case a habeas petition may be construed as a civil rights complaint. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L. Ed. 2d 418 (1971). Although the Court may construe a habeas petition as a civil rights action, it is not required to do so. Since the time when the Wilwording case was decided there have been significant changes in the law. For instance, the filing fee for a habeas petition is five dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For civil rights cases, however, the fee is now $350 and under the Prisoner Litigation Reform Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A prisoner who might be willing to file a habeas petition for which he or she would not have to pay a filing fee might feel otherwise about a civil rights complaint for which the $350 fee would be deducted from income to his or her prisoner account. Also, a civil rights complaint which is dismissed as malicious, frivolous, or for failure to state a claim would count as a "strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases. Finally, in a civil rights action, the plaintiff may name as defendants only those individuals who personally participated in the deprivation of his rights, and must adequately link each defendant to the alleged constitutional violation. Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Here, Petitioner names only the warden, who has no readily apparent involvement in Petitioner's claims.

In view of these potential pitfalls for Petitioner if the petition were construed as a civil rights complaint, the Court will recommend the case be dismissed without prejudice to Petitioner presenting the claims in a civil rights complaint pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), rather than a habeas petition. Any such complaint will be assigned a separate civil number.

II. Order

Based on the foregoing, it is HEREBY ORDERED that:

IT IS SO ORDERED.