Burgess v. Rios

Filing 11

FINDINGS and RECOMMENDATIONS to Deny Petitioner's Emergency Motion for 10 Temporary Restraining Order signed by Magistrate Judge Sheila K. Oberto on 07/03/2012. Referred to Judge Ishii; Objections to F&R due by 8/7/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COREY BURGESS,
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Petitioner,
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v.
HECTOR ALFONZO RIOS,

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Respondents.

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1:12-cv—00777-AWI-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S EMERGENCY
MOTION FOR TEMPORARY RESTRAINING
ORDER (DOC. 10)
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a federal prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2241.

The matter has been referred to the

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Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules
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302 and 303.

Pending before the Court is Petitioner’s motion for

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a temporary restraining order, which was filed on June 21, 2012.
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I.

Background

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Petitioner’s petition was filed on May 11, 2012.

On May 30,

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2012, the Court directed Respondent to file an answer.

On June

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21, 2012, Petitioner filed his motion for a temporary restraining
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order, which was not served on Respondent.
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II.

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Petitioner’s Motion for a Temporary Restraining Order

Petitioner, an inmate of the United States Penitentiary at

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Atwater, California (USPA), asserts generally that he is being

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assaulted with excessive force by a number of named staff members

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in the Security Housing Unit and has been intimidated and

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threatened by exposure to gas and munitions from a bean bag gun.

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(Mot., doc. 10, 1-2.)

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confinement and has been denied various privileges, such as

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recreation, showers, and access to his legal materials and the

Further, he has been placed in solitary

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law library.

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retaliation for his having filed habeas petitions and having

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given guidance to other inmates.

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Petitioner alleges that named staff used excessive force when

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pulling on him in response to Petitioner’s refusal to exercise as

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directed; he was also subjected to a false disciplinary report.

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(Id. at 4-6.)

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inmates that Petitioner is a snitch because he uses the

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administrative remedy process, thereby endangering Petitioner’s

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life.

Petitioner asserts that his mistreatment is in

(Id. at 2.)

On June 17, 2012,

Finally, other named officers have stated to other

(Id. at 7.)

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A review of Petitioner’s motion for a temporary restraining

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order demonstrates that Petitioner is challenging the conditions

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

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Relief by way of a writ of habeas corpus pursuant to 28 U.S.C. §

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2241 extends to a prisoner who shows that the custody violates

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the Constitution, laws, or treaties of the United States.

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U.S.C. § 2241(c)(3).

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over which it has no jurisdiction.

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F.3d 861, 865 (9th Cir. 2000).

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A federal court may not entertain an action

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Hernandez v. Campbell, 204

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Relief by way of a writ of habeas corpus extends to a person

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in custody under the authority of the United States if the

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petitioner can show that he is “in custody in violation of the

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Constitution or laws or treaties of the United States.”

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U.S.C. § 2241(c)(1) & (3).

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is the proper mechanism for a prisoner to challenge the fact or

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duration of his confinement.

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485 (1973); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991);

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Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990).

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Specifically, a habeas corpus action

Preiser v. Rodriguez, 411 U.S. 475,

However,

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to the extent that the prisoner seeks damages or injunctive

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relief for civil rights violations, the prisoner’s claim or

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claims are properly brought in an action pursuant to Bivens v.

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Six Unknown Named Narcotics Agents, 403 U.S. 388 (1971).

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Tucker v. Carlson, 925 F.2d at 332.

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See,

Because in the motion Petitioner seeks to challenge the

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conditions of his confinement, and not the legality or duration

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of his confinement, these particular claims are cognizable in a

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Bivens action rather than in a petition for writ of habeas

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corpus.

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a temporary restraining order be denied.

Accordingly, it will be recommended that the motion for

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III.

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In accordance with the foregoing, it is RECOMMENDED that:

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1) Petitioner’s motion for a temporary restraining order be

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Recommendation

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).

Within thirty (30) days after

Replies to the objections shall be served

The Court will

The parties are advised that failure to file

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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).

Martinez v. Ylst, 951 F.2d

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IT IS SO ORDERED.

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Dated:
ie14hj

July 3, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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