Miller v. McWilliams et al

Filing 38

ORDER adopting Report and Recommendations 25 ; granting 34 Motion to Consider Exhibits; granting 36 Motion to Consider Exhibits; denying without prejudice 19 Motion to Enjoin, Es-Stop, Remove; denying without prejudice 20 Motion to Restore Record. Signed by Judge Mary H Murguia on 3/1/2009. (LAD)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

WAYNE M. MILLER, Petitioner, vs. CARSON MCWILLIAMS, et al., Respondents.

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No. CV 07-1461-PHX-MHM ORDER

Petitioner Wayne M. Miller ("Petitioner") filed a Petition for Writ of Habeas Corpus (the "petition") pursuant to 28 U.S.C. § 2254 on July 30, 2007. Petitioner has twice amended his petition, on October 4, 2007 and November 28, 2007 (Dkt. #7, Dkt. #10). Petitioner filed a Motion to Enjoin, Es-stop, Remove (Dkt. #19) on March 11, 2008 and a Motion to Restore Record" (Dkt. #20) on March 24, 2008. This matter was referred to Magistrate Judge Bernardo P. Velasco who issued a Report and Recommendation on May 19, 2008, recommending that the Court deny both of Petitioner's motions without prejudice. Petitioner filed his objections to the Report and Recommendation on June 2, 2008 (Dkt. #26). Respondents have not filed any opposition to the Report and Recommendation. Petitioner

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has since filed an additional motion, Motion to Consider Exhibits in Totality, on September 3, 2008 (Dkt. #34, 36).1 STANDARD OF REVIEW The District Court must review the Magistrate Judge's findings and recommendations de novo if objection is made but not otherwise. United States v. Reina-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc); See 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made"). "Failure to object to a magistrate judge's recommendation waives all objections to the judge's findings of fact." Jones v. Wood, 207 F.3d 557, 562 n. 2 (9th Cir. 2000). DISCUSSION The Magistrate Judge recommended that Petitioner's Motion to Enjoin, Es-stop, Remove and Motion to Restore Record be denied without prejudice. (Dkt. #25). In opposition to the Magistrate Judge's Report and Recommendation, the Petitioner filed an objection. (Dkt. #26). Petitioner's objection relates only to his Motion to Enjoin, Es-stop, Remove. Specifically, Petitioner objects to the Magistrate Judge's recommendations related to "the court's dismissal of his civil rights claim added to his habeas corpus petition," and the court's denial of his request to enjoin forcible medication and request for transfer. (Dkt. #26 at 1, 3). Upon such review, the Court finds Petitioner's objection to be unpersuasive and that the record supports the denial of the motion. The Court will address both of these portions of the objection in turn. I. Motion to Enjoin, Es-Stop, Remove A. Petitioner's Attempt to Amend His Petition to Add a 42 U.S.C. § 1983 Claim Petitioner contends that the Court should not dismiss his civil rights claim "added to his habeas corpus petition" because special circumstances exist that require "prompt federal intervention of state confinement," namely the prison's alleged forcible medication of

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This motion appears to have been docketed twice. -2-

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Petitioner, implantation of a microchip against Petitioner's will, and microwaving of Petitioner. (Dkt. #26 at 1-2). In reviewing the record de novo, Petitioner does not offer a persuasive argument as to why this Court should grant his Motion to Enjoin, Es-stop, Remove. As noted by the Magistrate Judge, Petitioner has already filed a petition under 28 U.S.C. § 2254, which has been amended twice since the original filing. (Dkt. #1, Dkt. #7, Dkt. #10). The purpose of Petitioner's second amended petition, which was filed November 28, 2007, is undoubtedly to reverse Petitioner's conviction under 28 U.S.C. § 2254 and only raises issues from his criminal trial as a basis for reversal. The second amended petition does not raise a civil rights cause of action. In fact, nothing in the most recent petition mentions prison conditions. (Dkt. #10). This Court adopts the Magistrate Judge's finding that the Petitioner's claim under 28 U.S.C. § 2254 cannot be converted to a 42 U.S.C. § 1983 claim. "Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the `legality or duration' of confinement." Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). "A civil rights action, in contrast, is the proper method of challenging `conditions of . . . confinement.'" Id. (citing Preiser at 498-499). The Court agrees with the Magistrate Judge's recommendation that this motion be denied without prejudice to raising this claim in a 42 U.S.C. § 1983 civil rights action. B. Petitioner's Attempt to Enjoin Forcible Medication and Request for Transfer This Court also conducted a de novo review of the record regarding Petitioner's request to be transferred to the Maricopa County Medical Center and his attempt to enjoin prison staff from forcibly medicating him. As previously stated, the issues in Petitioner's suit are limited to those related to 28 U.S.C. § 2254 as enumerated in his second amended petition. As the Magistrate Judge noted, an injunction is only fitting when the intermediate relief that it grants is of the same character as the relief that may be granted finally, and relief is improper when requested for matters that are wholly outside issues in the petition. DeBeers Consol. Mines v. United States, 325 U.S. 212, 220 (1945); Kaimowitz v. Orlando, -3-

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Fla., 122 F.3d 41, 43 (11th Cir.), amended, 131 F.3d 950 (11th Cir. 1997). Before obtaining injunctive relief, the party must "establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint." Devose v. Harrington, 42 F.3d 470, 471 (8th Cir. 1994). Petitioner did not establish any relationship between the injury claimed in his petition and his Motion to Enjoin, Es-stop, Remove. As the Magistrate Judge correctly notes, Petitioner's Motion to Enjoin, Es-stop, Remove concerns events unrelated to the issues presented in his second amended petition and furthermore, it concerns conduct of persons other than Defendants. The Court will adopt the Magistrate Judge's recommendation that Petitioner's Motion to Enjoin, Es-stop, Remove be denied without prejudice. II. Petitioner's Motion to Restore Record The Magistrate Judge considered Petitioner's Motion to Restore Record in his Report and Recommendation and recommended that it be denied. Because Petitioner did not object to this denial, this Court need not conduct a de novo review of the Magistrate Judge's determination. Jones, 207 F.3d 557 at 562. In the absence of an objection to a portion of the Report and Recommendation, the Court "must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72 Advisory Committee Note). This Court finds no clear error and will adopt the Magistrate Judge's recommendation that Petitioner's Motion to Restore Record be denied without prejudice. Accordingly, IT IS HEREBY ORDERED adopting the Magistrate Judge's Report and Recommendation in its entirety. (Dkt. #25). IT IS FURTHER ORDERED denying without prejudice Petitioner's Motion to Enjoin, Es-Stop, Remove. (Dkt. #19). IT IS FURTHER ORDERED denying without prejudice Petitioner's Motion to Restore Record. (Dkt. #20).

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IT IS FURTHER ORDERED granting Petitioner's Motion to Consider Exhibits in Totality. (Dkt. #34, 36). DATED this 1st day of March, 2009.

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