Ortega v. People of the State of California

Filing 28

FINDINGS and RECOMMENDATIONS recommending that Petitioner's Request for Injunctive Relief be DENIED re 25 MOTION for 30-DAY EXTENSION OF TIME to File a Traverse MOTION for Order Granting Access to Law Library filed by Mark Curtis Ortega ; referred to Judge Ishii, signed by Magistrate Judge Sheila K. Oberto on 10/31/2012. Objections to F&R due by 12/6/2012 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARK CURTIS ORTEGA,

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Petitioner,

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v.
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MARTIN BITER, Warden,
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Respondent.
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1:12-cv—00070-AWI-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S MOTION FOR AN
ORDER GRANTING HIM ACCESS TO THE
LAW LIBRARY (DOC. 25)
DEADLINE FOR OBJECTIONS:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se with a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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The matter has been referred to the Magistrate Judge pursuant to

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28 U.S.C.§ 636(b)(1) and Local Rules 72-302 and 72-303.

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before the Court is Petitioner’s motion for an order directing

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that Petitioner be granted access to the law library at Kern

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Valley State Prison, where Petitioner is incarcerated, which was

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filed on August 24, 2012.

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motion to constitute a motion for injunctive relief.

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Pending

The Court understands Petitioner’s

Petitioner states that there has been a lock down at the

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prison where he is incarcerated and that the only way he is sure

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that he will be able to gain access to the law library to prepare
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a traverse is if this Court orders it.

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Court notes that Petitioner was separately granted an extension

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of time to file a traverse, and he subsequently filed a traverse

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on September 24, 2012.

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entirety, the Court concludes that Petitioner is challenging the

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conditions of his confinement, not the fact or duration of that

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confinement.

(Mot., doc. 25, 1.)

The

After reviewing the request in its

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It is established that relief by way of a writ of habeas

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corpus pursuant to 28 U.S.C. § 2241 extends to a prisoner who

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demonstrates that the custody violates the Constitution, laws, or

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treaties of the United States.

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28 U.S.C. § 2241(c)(3).

A habeas corpus petition is the correct method for a

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prisoner to challenge the legality or duration of his

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confinement.

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(quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973));

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Advisory Committee Note to Rule 1 of the Rules Governing Section

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2254 Cases (Habeas Rules), 1976 Adoption.

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rights action pursuant to 42 U.S.C. § 1983 is the proper method

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for a prisoner to challenge the conditions of that confinement.

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McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411

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U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Note to

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Habeas Rule 1, 1976 adoption.

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

In contrast, a civil

Because Petitioner seeks to challenge the conditions of his

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confinement, and not the legality or duration of his confinement,

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these particular claims are cognizable in a civil rights action

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rather than a petition for writ of habeas corpus.

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it will be recommended that the request for injunctive relief be

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denied.
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Accordingly,

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IV.

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In accordance with the foregoing, it is RECOMMENDED that:

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1) Petitioner’s request for injunctive relief be DENIED.

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These findings and recommendations are submitted to the

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United States District Court Judge assigned to the case, pursuant

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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

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the Local Rules of Practice for the United States District Court,

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Eastern District of California.

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being served with a copy, any party may file written objections

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with the Court and serve a copy on all parties. Such a document

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should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.”

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and filed within fourteen (14) days (plus three (3) days if

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served by mail) after service of the objections.

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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §

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636 (b)(1)(C).

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objections within the specified time may waive the right to

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appeal the District Court’s order.

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1153 (9th Cir. 1991).

Recommendation

Within thirty (30) days after

Replies to the objections shall be served

The Court will

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

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IT IS SO ORDERED.

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Dated:
ie14hj

October 31, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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