The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS FOR FAILING TO STATE COGNIZABLE CLAIM [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under the authority of 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on February 22, 2013. (Pet., ECF No. 1.) In the petition, Petitioner alleges that Ventura County Sheriffs at the Ventura County Jail violated procedures and drafted a report containing false information that had negative consequences to his conditions of confinement with the California Department of Corrections. (Pet. at 6.) Specifically, it appears that the information contained in the report was used to validate Petitioner as an associate of the Mexican Mafia (EME), and place Petitioner in administrative segregation.
A. Procedural Grounds for Summary Dismissal
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. 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).
B. Failure to State Cognizable Claim
A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 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.
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.
Petitioner's claims do not implicate the fact or duration of his confinement. Petitioner challenges a report from the Ventura County Sheriff's Office that was relied upon to validate Petitioner as a gang associate. (Pet.) While courts have differed regarding whether gang validation sufficiently impacts the duration of a petitioner's sentence to present a cognizable habeas claim, Petitioner's challenge to a Sheriff's Office report is too attenuated to any ultimate impact on the duration of Petitioner's custody to create habeas jurisdiction. As Petitioner does not challenge his conviction or sentence, or challenge a ruling that negatively impacts the duration of his custody, Petitioner's claims are not cognizable grounds for federal habeas corpus relief and must be dismissed. Should Petitioner wish to pursue his claims, he must do so by way of a civil rights complaint.
The Court expresses no opinion as to the merits of such a civil rights complaint.
As it does not appear possible that the deficiencies identified herein can be cured by amending the complaint, Petitioner is not entitled to leave to amend prior to dismissal of the entire action. See Lopez v. ...