Mitchell v. Huges, et al.

Filing 4

ORDER DISMISSING Petition for Writ of Habeas Corpus For Failure to State Cognizable Claim, signed by Magistrate Judge Sandra M. Snyder on 2/10/09. (CASE CLOSED)(Hellings, J)

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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 HUGES, et.al., 13 Respondents. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. 2254. Pursuant to 28 U.S.C. 636(c)(1), Petitioner consented to the 17 jurisdiction of the United States Magistrate Judge. (Court Doc. 3.) 18 Petitioner filed the instant petition for writ of habeas corpus on January 21, 2009. (Court 19 Doc. 1.) Petitioner contends that prison officials failed to protect him from being attacked. 20 DISCUSSION 21 Rule 4 of the Rules Governing 2254 Cases requires the Court to make a preliminary 22 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 23 plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." Rule 24 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 25 (9th Cir.1990). A federal court may only grant a petition for writ of habeas corpus if the 26 petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. 27 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality 28 1 / v. SHAULTON J. MITCHELL, Petitioner, 1:09-cv-00124-SMS (HC) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO STATE COGNIZABLE CLAIM [Doc. 1] UNITED STATES DISTRICT COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 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; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. Here, Petitioner's claim that prison officials failed to protect him from being attacked, is a challenge to the conditions of his confinement, not the fact or duration of that confinement. Thus, Petitioner is not entitled to habeas corpus relief, and this petition must be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a civil rights complaint pursuant to 42 U.S.C. 1983. ORDER Accordingly, it is HEREBY ORDERED that the instant petition for writ of habeas corpus is DISMISSED. IT IS SO ORDERED. Dated: icido3 February 10, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 2

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