United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
JUDGE FINDINGS AND RECOMMENDATION TO SUMMARILY DISMISS
PETITION [THIRTY DAY OBJECTION DEADLINE]
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
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. He filed the instant
petition on December 19, 2019. The petition does not
challenge the underlying conviction; it instead presents
various claims concerning the conditions of his confinement.
Accordingly, the Court will recommend that it be DISMISSED.
Preliminary Review of Petition
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court . . . .”
Rule 4 of the Rules Governing Section 2254 Cases. 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. Herbst v. Cook, 260 F.3d 1039 (9th Cir.
Civil Rights Claims
does not challenge his conviction. He instead contends that
the State is obstructing him in his attempts to exhaust his
administrative appeals. (Doc. 1 at 5.) He claims that he has
submitted over one hundred CDCR-602 appeals which have been
unlawfully rejected or screened out. (Doc. 1 at 5.) He claims
that he is in imminent danger of more physical harm due to
the State's rejections of his complaints. (Doc. 1 at
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)). 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 confinement. McCarthy v.
Bronson, 500 U.S. 136, 141-42 (1991); Preiser,
411 U.S. at 499. Petitioner's civil rights claims are not
cognizable in a federal habeas action and must be dismissed.
Petitioner must seek relief for his complaints by way of a
civil rights action.
Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir.
2016), the Ninth Circuit held that a district court has the
discretion to construe a habeas petition as a civil rights
action under § 1983. However, recharacterization is
appropriate only if it is “amenable to conversion on
its face, meaning that it names the correct defendants and
seeks the correct relief, ” and only after the
petitioner is warned of the consequences of conversion and is
provided an opportunity to withdraw or amend the petition.
Id. Here, the Court does not find recharacterization
to be appropriate. Petitioner does not name the proper
defendants and the claims are not amenable to conversion on
their face. Accordingly, the Court should not exercise its
discretion to recharacterize the action.
the Court will recommend that the action be dismissed and the
Clerk of Court be directed to send Petitioner a blank civil
HEREBY ORDERED that the Clerk of Court is DIRECTED to assign
a District Judge to the case.
foregoing reasons, the Court HEREBY RECOMMENDS that the
habeas corpus petition be DISMISSED and the Clerk of Court be
DIRECTED to provide ...