FINDINGS & RECOMMENDATIONS
By order filed September 12, 2008, the court construed petitioner's habeas petition as a civil rights complaint because petitioner was challenging the confiscation of his property by prison officials and was not challenging the fact or duration of his confinement.
On October 14, 2008, petitioner filed objections to the court's order transforming his habeas petition to a civil rights complaint. Petitioner stated he wanted to proceed on his habeas petition; he did not seek punitive or compensatory damages but wanted his property to be replaced. In the alternative, petitioner contended he should be permitted to dismiss the habeas petition rather than proceed with the civil rights action. The court found good cause to vacate the September 12, 2008 order. However, petitioner was informed that the United States Supreme Court has held that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533 (1984). Petitioner was also advised that his property claim could not be pursued by petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was directed to either amend his petition to file a civil rights complaint, in which case he would be assessed the $350.00 filing fee, or to voluntarily dismiss this action.
On December 4, 2008, petitioner filed an objection to the court's order, claiming this court must allow him to amend his habeas petition and to direct the Warden to return petitioner's habeas corpus petition that has been withheld from him since May of 2008.
It is clear from petitioner's filing that he does not intend to pursue a civil rights claim under 42 U.S.C. § 1983, despite this court's instructions to do so.
As petitioner has previously been advised, he cannot seek return of withheld property by way of habeas corpus petition. Habeas relief is only appropriate for challenges to the fact or duration of confinement. Petitioner may not choose to seek relief by way of habeas petition in order to avoid paying the $350.00 filing fee. Petitioner has been granted leave to file an amended petition to seek habeas relief. Granting petitioner further leave to file an amended petition in which he intends to again seek return of withheld property would be futile.
Thus, the instant action must be dismissed for petitioner's failure to comply with this court's prior orders. Petitioner was cautioned that failure to comply with this court's order would result in a recommendation that this action be dismissed. (November 4, 2008 Order at 3.)
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to comply with this court's orders. Fed. R Civ. P. 41(b).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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