IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 15, 2011
FRANCISCO GONZALEZ, PLAINTIFF,
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel. On August 10, 2011, plaintiff filed the instant civil rights complaint along with a petition for writ of habeas corpus filed in 2:11-cv-2121 GGH P.*fn1 Plaintiff brought the instant action under 42 U.S.C. § 1983, but is challenging his detention, which is more appropriately the subject of plaintiff's habeas action, Case No. 2:11-cv-2121 GGH, which is presently pending. Therefore, plaintiff's complaint should be dismissed without prejudice.
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986).
However, when a state prisoner challenges the fact or duration of his custody and the relief he seeks is the determination of his entitlement to release, his sole federal remedy is a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (a petition for writ of habeas corpus is the only proper mechanism to challenge the legality or duration of confinement).
In the instant complaint, plaintiff challenges the hold that the United States Immigration and Customs Enforcement placed on plaintiff which will result in plaintiff's deportation to Mexico once plaintiff completes the sixteen month sentence imposed for his conviction for driving under the influence.*fn2 For relief, plaintiff asks the court to "help [him] out in [his] I.N.S. hold." (Dkt. No. 1 at 3.) However, the relief plaintiff seeks is more appropriately sought by way of petition for writ of habeas corpus. Indeed, plaintiff is pursuing this claim in a petition for writ of habeas corpus filed in Case No. 2:11-cv-2121 GGH, and his challenge to the deportation hold will be addressed therein. Therefore, this action should be dismissed without prejudice.
In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign a district judge to this case; and
IT IS RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b).
These findings and recommendations are submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. Plaintiff is 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).