Ari v. The People Of The State Of California

Filing 8

FINDINGS and RECOMMENDATIONS Regarding 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Sandra M. Snyder on 1/21/2010. The Court RECOMMENDS that the petition for writ of mandate/prohibition be SUMMARILY DISMISSED for lack of jurisdiction. The Court further RECOMMENDS that theClerk of Court be DIRECTED to send Petitioner the standard form for claims pursuant to 42 U.S.C. § 1983. Referred to Judge Anthony W. Ishii. Objections to F&R due by 2/23/2010. (Bradley, A)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) Petitioner, ) ) v. ) ) ) THE SUPERIOR COURT OF THE ) STATE OF CALIFORNIA, COUNTY OF ) MADERA, ) ) Respondent. ) ) 1:10-CV-00017 AWI SMS HC FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

On January 4, 2010, Petitioner filed a petition for writ of mandate/prohibition in this Court pursuant to 28 U.S.C. § 1651. DISCUSSION The instant petition seeks a writ of mandamus directed to the Madera County Superior Court. This Court lacks jurisdiction to issue such a writ against a state court. 28 U.S.C. § 1651. Therefore, the instant petition is frivolous as a matter of law. Demos v. U.S. District Court, 925 F.2d 1160, 1161-72 (9th Cir.1991). The Court notes that Petitioner is complaining of certain actions by Respondent including "stalking . . . , ducating, coming to her room, kidnaping her and giving her psychotropic medication." (Pet. at 3.) Petitioner is challenging the conditions of her confinement. A civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the 1

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conditions of her confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser v. Rodriguez, 411 U.S. 475, 499 (1973); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. Therefore, to the extent Petitioner seeks relief for her complaints, the proper avenue is a civil rights complaint. RECOMMENDATION Accordingly, the Court RECOMMENDS that the petition for writ of mandate/prohibition be SUMMARILY DISMISSED for lack of jurisdiction. The Court further RECOMMENDS that the Clerk of Court be DIRECTED to send Petitioner the standard form for claims pursuant to 42 U.S.C. § 1983. This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: icido3 January 21, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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