Jones v. Fresno County Jail

Filing 5

ORDER signed by Magistrate Judge William M. Wunderlich on 1/13/2009 DISMISSING Petition without prejudice to Petitioner's right to file a civil rights action; DIRECTING Clerk to enter judgment for Respondent and Close Case. CASE CLOSED. (Jessen, A)

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus pursuant to 28 U.S.C. Section 2241. Rule 4 of the Rules Governing § 2254 Cases requires the court to make a preliminary review of each petition for writ of habeas corpus. The court must dismiss a petition "[i]f it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief in the district court." Rule 4 of the Rules Governing 2254 Cases; see, also, Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Although Petitioner is a state prisoner, Petitioner has brought this petition pursuant to ) ) Petitioner, ) ) vs. ) ) ) FRESNO COUNTY JAIL, ) ) Respondent. ) ) ) ___________________________________ ) LATONIA JONES, 1:08-CV-1702-WMW ORDER DISMISSING PETITION WITHOUT PREJUDICE

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28 U.S.C. § 2241. This statute provides relief to a federal prisoner if he can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States," under 28 U.S.C. § 2254(a). 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). Where a petitioner seeks to challenge the conditions of his confinement rather than the legality of the confinement itself, the proper method is through a civil rights action pursuant to 42 U.S.C. § 1983. In this case, Petitioner expressly states that Petitioner is challenging conditions at the Fresno County Jail. Accordingly, the proper vehicle for Petitioner to pursue Petitioner's claims is through a civil rights action pursuant to 42 U.S.C. § 1983. Based on the above, IT IS HEREBY ORDERED as follows: 1) The petition for writ of habeas corpus is DISMISSED without prejudice to Petitioner's right to file an appropriate civil rights action; and 2) The Clerk of the Court is directed to enter judgment for Respondent and to close this case. IT IS SO ORDERED. Dated: January 13, 2009 mmkd34 /s/ William M. Wunderlich UNITED STATES MAGISTRATE JUDGE

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