The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER'S EMERGENCY ) MOTION FOR TEMPORARY
ORDER (DOC. 10)
OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before the Court is Petitioner's motion for a temporary restraining order, which was filed on June 21, 2012.
Petitioner's petition was filed on May 11, 2012. On May 30, 2012, the Court directed Respondent to file an answer. On June 21, 2012, Petitioner filed his motion for a temporary restraining order, which was not served on Respondent.
II. Petitioner's Motion for a Temporary Restraining Order
Petitioner, an inmate of the United States Penitentiary at Atwater, California (USPA), asserts generally that he is being assaulted with excessive force by a number of named staff members in the Security Housing Unit and has been intimidated and threatened by exposure to gas and munitions from a bean bag gun. (Mot., doc. 10, 1-2.) Further, he has been placed in solitary confinement and has been denied various privileges, such as recreation, showers, and access to his legal materials and the law library. Petitioner asserts that his mistreatment is in retaliation for his having filed habeas petitions and having given guidance to other inmates. (Id. at 2.) On June 17, 2012, Petitioner alleges that named staff used excessive force when pulling on him in response to Petitioner's refusal to exercise as directed; he was also subjected to a false disciplinary report. (Id. at 4-6.) Finally, other named officers have stated to other inmates that Petitioner is a snitch because he uses the administrative remedy process, thereby endangering Petitioner's life. (Id. at 7.)
A review of Petitioner's motion for a temporary restraining order demonstrates that Petitioner is challenging the conditions of his confinement, not the fact or duration of that confinement. Relief by way of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 extends to a prisoner who shows that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000).
Relief by way of a writ of habeas corpus extends to a person in custody under the authority of the United States 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. § 2241(c)(1) & (3). Specifically, a habeas corpus action is the proper mechanism for a prisoner to challenge the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990). However, to the extent that the prisoner seeks damages or injunctive relief for civil rights violations, the prisoner's claim or claims are properly brought in an action pursuant to Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388 (1971). See, Tucker v. Carlson, 925 F.2d at 332.
Because in the motion Petitioner seeks to challenge the conditions of his confinement, and not the legality or duration of his confinement, these particular claims are cognizable in a Bivens action rather than in a petition for writ of habeas corpus. Accordingly, it will be recommended that the motion for a temporary restraining order be denied.
In accordance with the foregoing, it is RECOMMENDED that:
1) Petitioner's motion for a temporary restraining order be DENIED.
These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, 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." Replies to the objections shall be served and filed within fourteen (14) days (plus three (3) days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 ...