Rose Ann Fernandez v. Mr. Garcia et al

Filing 3

ORDER RE SUMMARY DISMISSAL OF ACTION by Judge S. James Otero: Pursuant to Rule 4 of the Rules Governing Section 2254 cases in the United States District Court, it is therefore ordered that this action be dismissed without prejudice. Case Terminated. Made JS-6. (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MISS ROSE ANN FERNANDEZ,

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Petitioner,
v.
WARDEN MR. GARETA, ET AL.,

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Respondents.

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No. EDCV 13-93 SJO (FFM)
ORDER RE SUMMARY
DISMISSAL OF ACTION

On January 15, 2013, petitioner filed what is captioned a Petition for Writ
of Habeas Corpus by a Person in State Custody (“Petition”).
As best the Court can glean from the face of the Petition, petitioner’s claims

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are not directed to the legality or duration of petitioner’s current confinement.

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Rather, petitioner’s claims are directed to conditions of confinement allegedly

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experienced by petitioner at California Institution for Women, in Corona,

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California (“CIW”). Petitioner appears to be contending that the officials at CIW

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have failed to protect her, assaulted her, prevented her from reporting sexual

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harassment, verbally abused her and were responsible for a “fraudulent issue of

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felony.”

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The Writ of Habeas Corpus is limited to attacks upon the legality or

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duration of confinement. Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979)

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(citing Preiser v. Rodriguez, 411 U.S. 475, 484-86 (1973)). “A civil rights action,

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in contrast, is the proper method of challenging ‘conditions of . . . confinement.’”

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Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez,

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411 U.S. at 498-99); see also Young v. Kenny, 907 F.2d 874, 875 n.1 (1990).

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Petitioner’s claims as presently alleged do not implicate the legality or duration of

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confinement, but rather concern the conditions of confinement.

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The Court does have discretion to construe petitioner’s habeas petition as a

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civil rights complaint. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971);

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Hansen v. May, 502 F.2d 728, 729-30 (9th Cir. 1974). But cf. 42 U.S.C. § 1997e

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(a) (requiring prisoners to exhaust administrative remedies before filing action

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with respect to prison conditions). In this instance, however, the Court chooses

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not to exercise such discretion, because it is not clear that petitioner has exhausted

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her administrative remedies.

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Pursuant to Rule 4 of the Rules Governing Section 2254 cases in the United

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States District Court, it is therefore ordered that this action be dismissed without

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prejudice.

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DATED: January 24, 2013.
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S. JAMES OTERO
United States District Judge

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Presented by:

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/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge

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