United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY THE PETITION AND FIRST
AMENDED PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO STATE
A COGNIZABLE CLAIM (ECF NOS. 1, 8)
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
is a federal prisoner proceeding pro se with a petition for
writ of habeas corpus under the authority of 28 U.S.C. §
filed the instant petition for writ of habeas corpus on
January 24, 2017. (Pet., ECF No. 1.) In the petition,
Petitioner states that he underwent a disciplinary hearing
for possession of a dangerous weapon and was found guilty. He
was disallowed forty one days of good conduct time and
assessed a 15-day segregated housing term, loss of commissary
and phone privileges, and a monetary fine. At the time he
filed his petition, he had finished his term in disciplinary
segregation. However, his institutional trust account was
frozen and he was unable to purchase hygiene items or pens.
He contends that this freeze was imposed in retaliation and
prevented him from accessing the courts.
February 28, 2017, Petitioner filed a first amended petition,
which appears intended to supplement, rather than replace his
original petition. (ECF No. 8.) He states that he continues
to suffer restrictions on his trust account, is unable to
purchase stamps and pens, and is subjected to a campaign of
harassment and retaliation.
petitions, Petitioner seeks unspecified injunctive relief.
Procedural Grounds for Summary Dismissal
of the Rules Governing Section 2254 Cases provides in
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.
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.
Failure to State Cognizable Claim
federal court may only grant a petition for writ of habeas
corpus if the federal petitioner can demonstrate that he
"is in custody in violation of the Constitution or laws
or treaties of the United States." 28 U.S.C. §
2241(a), (c)(3). A habeas corpus petition is the correct
method for a prisoner to challenge “the very fact or
duration of his confinement, ” and where “the
relief he seeks is a determination that he is entitled to
immediate release or a speedier release from that
imprisonment.” Preiser v. Rodriguez, 411 U.S.
475, 489 (1973). 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. In other words, if a
successful conditions of confinement challenge would not
necessarily shorten the prisoner's sentence, then §
1983 is the appropriate vehicle. See Wilkinson v.
Dotson, 544 U.S. 74 (2005).
claims do not implicate the fact or duration of his
confinement. The Court notes that Petitioner does not
challenge his underlying conviction by way of this petition.
As stated, Petitioner challenges the conditions of his
confinement. Specifically, he challenges the denial of access
to his trust account and commissary items, and what he
describes as harassment and retaliation. Petitioner's
claims, even if meritorious, would not implicate the fact or
duration of his confinement.
the petition refers to a disciplinary violation, Petitioner
was no longer confined in disciplinary segregation at the
time of filing his petition and does not appear to challenge
the proceeding itself or the disallowance of good conduct
time. Furthermore, even if his claims can be construed to
implicate the fact or duration of his confinement, it does
not appear that he has alleged any federal violation in the
conduct of his disciplinary hearing. A district court may
entertain a petition for a writ of habeas corpus by a state
prisoner only on the ground that the custody is in violation
of the Constitution, laws, or treaties of the United States.
28 U.S.C. ...