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Alton E. Dean v. Ongoing Healthcare

May 30, 2012

ALTON E. DEAN,
PETITIONER,
v.
ONGOING HEALTHCARE
RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DISMISSING CONDITIONS CLAIMS WITHOUT LEAVE TO AMEND (Doc. 1) ORDER DISMISSING PETITIONER'S ON HABEAS CORPUS, MOTION TO INCLUDE PROOF OF VIOLATIONS AS MOOT (Doc. 6) ORDER DIRECTING THE CLERK TO MAIL A CIVIL RIGHTS FORM TO PETITIONER ORDER TO PETITIONER TO SHOW CAUSE IN THIRTY (30) DAYS WHY THE REMAINDER OF THE PETITION SHOULD NOT BE DISMISSED FOR PETITIONER'S FAILURE TO EXHAUST STATE COURT REMEDIES (Doc. 1)

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on May 15, 2012 (doc. 5). Pending before the Court is Petitioner's petition, which was filed in this Court on May 8, 2012.

In the petition, Petitioner primarily challenges the procedures used, and the results reached, at prison disciplinary hearings concerning violations of prison rules that allegedly occurred on April 8, 2012, and April 18, 2010. He also appears to challenge prison conditions involving inadequate medical treatment and retaliatory threats.

I. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

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).

II. Conditions of Confinement

A federal court may only grant a state prisoner's petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the legality or duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases, 1976 Adoption.

In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases, 1976 Adoption.

Petitioner complains that on April 8, 2012, a prison doctor violated Petitioner's rights by denying Petitioner's serious medical needs with deliberate indifference by failing to prescribe medication needed by Petitioner; retaliatory charges were filed against Petitioner after he complained about medical care; correctional officers threatened Petitioner with placement in a different yard for his having fallen out of a wheel chair; Petitioner suffered unspecified attacks from other inmates; and a prison doctor discriminated against Petitioner with respect to medical care on the grounds of race. (Pet. at 1, 3, 26, 30, 32, 52.)

These allegations concern conditions of confinement and not the legality or duration of Petitioner's confinement. Thus, with respect to these allegations, Petitioner is not entitled to habeas corpus relief, and the claims concerning conditions of confinement must be dismissed.

Should Petitioner wish to pursue his claims, he must do so by way of a civil rights complaint pursuant to 42 U.S.C. ยง 1983. The Clerk will be directed to send ...


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