Khouanmany v. Carvajal
| Decision Date | 28 May 2021 |
| Docket Number | Case No. 20-CV-02858-LHK |
| Court | U.S. District Court — Northern District of California |
| Parties | VILAYCHITH KHOUANMANY, Petitioner, v. MICHAEL CARVAJAL, Respondent. |
Petitioner, a prisoner at the Federal Correctional Institution in Dublin, California ("FCI Dublin") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("Petition"). Dkt. No. 1. The Petition was dismissed without prejudice on June 22, 2020. See Dkt. No. 10.
The Court reopens the instant action in compliance with an order from the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"). See Dkt. No. 26, Khouanmany v. Caraval, Appeal No. 20-16352 (9th Cir. May 19, 2021) ("Ninth Circuit Order").
For the reasons stated below, the Court dismisses the Petition with leave to amend as to one of petitioner's five claims and without leave to amend as to the four remaining claims.
"In 2016, Vilaychith Khouanmany pleaded guilty to conspiracy to distribute methamphetamine after law enforcement intercepted a package of drugs that she sent from California to Iowa." United States v. Khouanmany, 726 F. App'x 514 (8th Cir. 2018). Petitioner was designated a career offender in the presentence report based on her prior drug offenses. See Dkt. No. 28 ("Reopening Motion") at 2. Petitioner was sentenced to 151 months' imprisonment. See id.
As noted, supra, petitioner currently is incarcerated at FCI Dublin. See Pet. at 1.1 Before being incarcerated at FCI Dublin, petitioner was incarcerated in Nevada and Arizona. See id. at 8. Petitioner "got transferred April 2019," was "in transit until June or July 2019," and appears to have settled at FCI Dublin on or about July 10, 2019. Id. at 10.
The Bureau of Prisons ("BOP") has established procedures by which inmates can seek review of "an issue relating to any aspect" of an inmate's confinement. 28 C.F.R. §§ 542.10. See 542.10-542.17 (2016) (setting forth the BOP's procedures). The procedures apply to all inmates in programs operated by the BOP. Id.
Under the BOP's procedures, an inmate first must attempt informal resolution of the issue with prison staff. See 28 C.F.R. § 542.13(a). If the inmate cannot resolve the issue informally, the inmate must submit a written administrative appeal to the Warden. See id. at § 542.14(d). The Warden is given 20 days to respond to the inmate's administrative appeal. See id. at § 542.18.
An inmate who is not satisfied with the Warden's response may then submit an appeal to the Regional Director. See id. at § 542.15(a). The Regional Director is given 30 days to respond to the inmate's administrative appeal. See id. at § 542.18.
Finally, an inmate who is not satisfied with the Regional Director's response may submit an appeal to the General Counsel of the BOP. See id. at § 542.15(a). The General Counsel is given 40 days to respond to the inmate's administrative appeal. See id. at § 542.18.
An inmate must file and receive a denial at all three levels (Warden, Regional Director, and General Counsel) before she is considered to have exhausted her available administrative remedies. See id. at § 542.15(a). ("Appeal to the General Counsel is the final administrative appeal.").
The Petition provides the following chronology of petitioner's attempts to exhaust:
On January 7, 2020, petitioner submitted a request for an informal resolution to T. Minor, whose role at FCI Dublin is unidentified. Pet. at 2. This request was forwarded to S. Milliken, a unit manager ("Unit Manager Milliken"). See id. The Petition does not identify the subject of this request for informal resolution. See id.
On March 2, 2020, petitioner contacted T. Minor and Unit Manager Milliken. See id. at 3. On March 29, 2020, petitioner contacted Unit Manager Milliken to ask about the status of a "BP 9 [petitioner] turned in with Ms. Minor two weeks ago." Id. at 3, 13. On March 30, 2020, Unit Manager Milliken responded, "I will discuss this with her (T. Minor) when she returns." Id. at 3, 13. The Petition does not identify the subject of this request for informal resolution. See id.
On April 3, 2020, petitioner contacted Associate Warden T. Mischel, the associate warden of FCI Dublin ("Associate Warden Mischel").2 See id. This request for informal resolution raised the issue of earned time credit under the First Step Act. See id. On April 10, 2020, Associate Warden Mischel responded with petitioner's release date, which was calculated using petitioner's good conduct time. See id. at 13. "[Petitioner] replied: 'I am not request GCT I am requesting"earned time credit" under Pattern programming, pursuant to FSA.'" Id. On April 14, 2020, Associate Warden Mischel responded, "Dublin has not started any classes which inmates can earn credit for as of yet." Id. at 14. Between April 14 and April 17, 2020, petitioner replied to Associate Warden Mischel that petitioner was "not requesting GCT or if classes started," but was instead "requesting and appealing BOP decision that [petitioner] do[es] not qualify for 'earned time credit and that [petitioner] [is] a medium Pattern score.'" Id.
On April 13, 2020, petitioner again contacted Unit Manager Milliken. Id. at 15. The Petition reveals that this contact concerned the determination that petitioner was ineligible for earned time credits. See id. Petitioner forwarded this email to the warden of FCI Dublin on April 15, 2020. See id.
Petitioner was convicted and sentenced in the United States District Court for the Southern District of Iowa ("Iowa District Court"). Pet. at 1. In that court, she filed a motion to vacate her sentence in that court, which was dismissed. See Dkt. Nos. 1, 14, Khouanmany v. United States of America, No. 4:19-cv-00087-JAJ (S.D. Iowa). This dismissal was summarily affirmed by the United States Court of Appeals for the Eighth Circuit ("Eighth Circuit"). See Khouanmany v. United States of America, Appeal No. 19-03274 (8th Cir. April 1, 2020).
In 2017, petitioner filed a civil rights complaint in the United States District Court for the Eastern District of California alleging, among other things, that she had been sexually assaulted by federal officials. See Dkt. No. 102, Khouanmany v. United States Marshals, No. 2:17-cv-01326-TLN-JDP (E.D. Cal. Sept. 3, 2019) (Third Amended Complaint). That lawsuit is ongoing.
Also in 2017, petitioner filed a civil rights suit in the Iowa District Court, challenging a search. See Dkt. No. 1, Khouanmany v. Doe, No. 4:17-cv-00438-JEG-CFB (S.D. Iowa Dec. 15, 2017). That lawsuit was dismissed at screening because, on its face, the complaint was Heck-barred and failed to state a claim. See Dkt. No. 6, Khouanmany v. Doe, No. 4:17-cv-00438-JEG-CFB (S.D. Iowa Dec. 15, 2017). The Eighth Circuit summarily affirmed the dismissal. SeeKhouanmany v. Doe, Appeal No. 18-1771 (8th Cir. Aug. 30, 2018).
In 2019, petitioner filed a civil rights suit in the United States District Court for the District of Arizona ("Arizona District Court"), challenging prison conditions. See Dkt. No. 1, Khouanmany v. Penzone, No. CV-19-02983-PHX-SRB (JZB) (D. Ariz. April 18, 2019). That lawsuit was dismissed for failure to state a claim and as prolix, after petitioner failed to file a coherent third amended complaint. See Dkt. No. 51, Khouanmany v. Penzone, No. CV-19-02983-PHX-SRB (JZB) (D. Ariz. August 3, 2020). An appeal of that dismissal is pending before the Ninth Circuit. See Khouanmany v. Penzone, Appeal No. 20-16594 (9th Cir.)
Petitioner filed the Petition on April 17, 2020. See Pet. at 9 (); see also Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir.2001) () (citation omitted).
The Court received the Petition on April 24, 2020. See id. at 1. That same day, the Court sent notices to petitioner, informing her that within 28 days petitioner needed to complete an in forma pauperis ("IFP") application and file her consent or declination to magistrate judge jurisdiction. Dkt. Nos. 3, 4. Petitioner filed neither her complete IFP application nor her consent or declination to magistrate judge jurisdiction. See generally, Dkt. Accordingly, on June 22, 2020, more than four weeks after petitioner's deadline to respond to the Court's notice had passed, the Court dismissed the Petition without prejudice. See Dkt. No. 10.
On July 2, 2020, petitioner filed a notice of appeal. See Dkt. No. 15. This act divested this Court of jurisdiction over the instant matter. See Nat. Res. Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001) ().
At least one week after she filed her notice of appeal, petitioner filed an IFP application. See Dkt. No. 18 (dated July 10, 2020). On July 13, 2020, petitioner filed a "supplemental brief" in support of her Petition in this Court. See Dkt. No. 17. The "supplemental brief" asked the Court to "label all legal mail" with an instruction that FCI Dublin, the facility where petitioner is incarcerated, open all legal mail in petitioner's presence. See id. It also asked the Court to "accept her completed ifp application with supporting documentation within a timely manner as soon as she was made aware please grant[] her motion." Id. Neither the IFP application nor the "supplemental brief" asked the Court to reconsider its dismissal of the Petition. See ...
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