Forte v. Jones

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MICHAEL FORTE,
Petitioner,
vs.
BRANDON JONES,
Respondent. Case No. 3:21-cv-00184-RRB
ORDER OF DISMISSAL
Michael Forte, representing himself from Anchorage Correctional Complex
(ACC) West, has filed a habeas petition under 28 U.S.C. § 2241, complaining of
the conditions of his confinement, and has paid the $5.00 filing fee applicable for
habeas petitions in this Court.1 	Mr. Forte asserts that he is being denied access
to the courts through the institution’s law library while incarcerated at ACC.2
Mr. Forte also asserts that he does not recall the number of his federal
criminal case.3 	The Court takes judicial notice that Mr. Forte’s federal criminal
case number is 3:15-cr-00062-SLG-DMS-1.4 The Court confirms that Mr. Forte is
1 Docket 1.
2 Id. at 2, 6–8.
3 Id. at 1.
4 Judicial notice is the “court’s acceptance, for purposes of convenience and without
requiring a party’s proof, of a well-known and indisputable fact....” Black’s Law Dictionary
(11th ed. 2019); see also Foster Poultry Farms v. Alkar-Rapidpak-MP Equip., Inc., 868 F.
Supp. 2d 983, 990 (E.D. Cal. 2012) (“Courts routinely take judicial notice of publicly
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incarcerated at ACC awaiting a hearing on a petition to revoke supervised release,
and that he is represented by counsel.5
SCREENING REQUIREMENT
A Court must “promptly examine” a habeas petition.6 	“If it plainly appears
from the motion, any attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief, the judge must dismiss the motion...”7 In
conducting its review of a self-represented litigant’s pleadings, a court must
liberally construe the pleadings and give the petitioner the benefit of the doubt.8
DISCUSSION
A writ of habeas corpus allows an individual to test the legality of being
detained or held in custody by the government.9 The writ “is a vital ‘instrument for
available records ... from other court proceedings.”) (citing Engine Mfrs. Ass’n v. South
Coast Air Quality Management Dist., 498 F.3d 1031, 1039 n.2 (9th Cir. 2007) (additional
citation omitted)); Fed. R. Evid. 201.
5 3:15-cr-00062-SLG-DMS-1, Dockets 106–127.
6 Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts. 	The same procedural rules for 28 U.S.C. § 2254 and § 2255 govern 28 U.S.C.
§ 2241.
7 Id.
8 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc)).
9 Rasul v. Bush, 542 U.S. 466, 474 (2004).
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the protection of individual liberty’ against government power.”10 Under 28 U.S.C.
§ 2241, this Court may grant a writ of habeas corpus to a prisoner “in custody in
violation of the Constitution or laws or treaties of the United States.”11 This habeas
statute provides federal courts with general habeas corpus jurisdiction.12 Mr. Forte
is challenging his access to the courts through the prison law library, rather than
the legality of his detention. Therefore, this petition must be dismissed.
Access to the Courts
Mr. Forte may file a claim for the violation of his civil rights under 42 U.S.C.
§ 1983. 	He 	is 	cautioned, 	however, 	that 	although 	prisoners 	have 	a 	federal
constitutional right to access the courts,13 prison officials may select the method to
ensure that prisoners have the ability to file suit.14 	The right to court access
“requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.”15 	In order to establish a
10 Gage v. Chappell, 793 F.3d 1159, 1167 (9th Cir. 2015); quoting Boumediene v. Bush,
553 U.S. 723, 743 (2008).
11 28 U.S.C. § 2241(c)(3).
12 See Magana-Pizano, 200 F.3d at 608 & n.4.
13 Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017); see also Rhodes v. Robinson,
408 F.3d 559, 567 (9th Cir. 2005).
14 Lewis v. Casey, 518 U.S. 343, 346 (1996).
15 Bounds v. Smith, 430 U.S. 817, 821 (1977).
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violation of the right to access the courts, a prisoner must sufficiently plead an
actual injury that that shows “actual prejudice with respect to contemplated or
existing litigation, such as the inability to meet a filing deadline or to present a
claim.”16
Because he is represented by counsel in his criminal case, Mr. Forte may
not be able to show any such actual injury. But Mr. Forte may file such a claim, if
it applies to him, stating the actual injury he suffered from a specific action by an
individual government officer.
Mr. Forte is cautioned that 28 U.S.C. § 1915(g) prohibits a prisoner who files
more than three actions or appeals in any federal court in the United States which
are dismissed as frivolous or malicious or for failure to state a claim upon which
relief may be granted, from bringing any other actions without prepayment of fees
unless the prisoner can demonstrate that he or she is in “imminent danger of
serious physical injury.”17
Therefore, IT IS HEREBY ORDERED:
16 Lewis, 518 U.S. at 349.
17 28 U.S.C. § 1915(g). Under § 1915(e)(2)(B), the Court is required to screen cases filed
by prisoners who seek to waive the $402.00 filing fee, and to dismiss the case if it
determines that the action--
(i) 	is frivolous or malicious;
(ii) 	fails to state a claim on which relief may be granted; or
(iii) 	seeks monetary relief against a defendant who is immune from such
relief.
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1. 	The Petition, at Docket 1, is DISMISSED without prejudice to filing a
new separate and appropriate civil rights case. 	The Clerk of Court will send
Mr. Forte a form PS01, Prisoner’s Complaint Under the Civil Rights Act, with
instructions, and a form PS11, Prisoner’s Application to Waive Prepayment of the
Filing Fee, with this order.
2. 	The Clerk of Court is directed to refund the $5.00 filing fee to Mr. Forte.
3. 	The 	Court, 	having 	concluded 	that 	Mr. 	Forte 	has 	not 	made 	a
substantial showing of the denial of a constitutional right appropriate in a habeas
case, DENIES a certificate of appealability.18 Any further request for a Certificate
of Appealability must be addressed to the Ninth Circuit Court of Appeals.19
18 See 28 U.S.C. 2253(c):
(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from--
(A) 	the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a
State court …
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).
See Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a certificate of appealability,
a prisoner must ‘demonstrat[e] that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.’” (citation omitted).
For the reasons set forth in this order, Mr. Forte has not made a substantial showing of
the denial of a constitutional right, or that jurists of reason could disagree with the district
court’s resolution, or that he deserves encouragement to proceed further in a habeas
proceeding. Banks, 540 U.S. at 705.
19 See Fed. R. App. P. 22(b); 9th Cir. R. 22-1.
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4. 	The Clerk of Court is directed to enter a Judgment accordingly.
Dated at Anchorage, Alaska. this 17th day of August, 2021.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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