Burgess v. Rios

Filing 34

ORDER ADOPTING 11 Findings and Recommendations re: Petitioner's Motion for a Temporary Restraining Order; ORDER DENYING Petitioner's 10 Motion for a Temporary Restraining Order; ORDER DEEMING Petitioner's 25 Motion to Produce to be a Motion for a Temporary Restraining Order; ORDER DENYING Petitioner's Motion for a Temporary Restraining Order, signed by Chief Judge Anthony W. Ishii on 10/26/2012. (Marrujo, C)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8
COREY BURGESS,
9
Petitioner,
10
11
12

v.
HECTOR ALFONZO RIOS, Warden,

13

Respondent.

14
15

)
)
)
)
)
)
)
)
)
)
)
)

1:12-cv—00777-AWI-SKO-HC
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS RE: PETITIONER’S
MOTION FOR A TEMPORARY
RESTRAINING ORDER (DOCS. 11, 10)
ORDER DENYING PETITIONER’S MOTION
FOR A TEMPORARY RESTRAINING ORDER
(DOC. 10)
ORDER DEEMING PETITIONER’S MOTION
TO PRODUCE TO BE A MOTION FOR A
TEMPORARY RESTRAINING ORDER (DOC.
25)

16
ORDER DENYING PETITIONER’S MOTION
FOR A TEMPORARY RESTRAINING ORDER
(DOC. 25)

17
18
19

Petitioner is a federal prisoner proceeding pro se and in

20

forma pauperis with a petition for writ of habeas corpus pursuant

21

to 28 U.S.C. § 2241.

22

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

23

through 304.

24

Petitioner filed a traverse to the answer on September 24, 2012.

25

The matter was referred to the Magistrate

An answer to the petition has been filed, and

Pending before the Court are the Magistrate Judge’s findings

26

and recommendations as well as an additional motion for

27

injunctive relief subsequently filed by Petitioner, which the

28

Court in its discretion chooses to address in this order in the
1

1

interest of the efficient administration of justice.

2

I.

3

On July 5, 2012, the Magistrate Judge filed findings and

Findings and Recommendations

4

recommendations to deny Petitioner’s motion for a temporary

5

restraining order.

6

on all parties on the same date.

7

recommendations permitted the filing of objections within thirty

8

days.

9

The findings and recommendations were served
The findings and

On August 20, 2012, Petitioner filed objections to the

10

findings and recommendations, which the Court will consider to

11

have been timely filed.

12

vague, generalized allegations regarding abuse by unidentified

13

prison staff which he alleges that he has suffered as retaliation

14

for having filed this petition and another petition.

15

seeks protection against this retaliation and against corporal

16

punishment and retaliatory transfers.

17

is pursuing administrative remedies as to the alleged abuse.

In the objections, Petitioner makes

Petitioner

Petitioner alleges that he

18

In accordance with the provisions of 28 U.S.C. § 636

19

(b)(1)(C), this Court has conducted a de novo review of the case.

20

The undersigned has carefully reviewed the entire file and has

21

considered the objections; the undersigned has determined there

22

is no need to modify the findings and recommendations based on

23

the points raised in the objections.

24

report and recommendations are supported by the record and proper

25

analysis.

The Court finds that the

26

Accordingly, the findings and recommendations to deny

27

Petitioner’s request for a temporary restraining order (doc. 10)

28

will be adopted in full.
2

1

II.

2

On August 14, 2012, Petitioner filed a document styled as a

Additional Motion for a Temporary Restraining Order

3

letter or motion to produce.

4

Petitioner seeks a temporary restraining order against several

5

named Bureau of Prison staff members at the Federal Correctional

6

Institution at Mendota (FCIM), including a case manager, a unit

7

manager, the warden, an associate warden, and others who remain

8

unnamed.

9

been the victim of unspecified harassment, physical abuse,

(Id. at 1.)

(Doc. 25.)

In the document,

Petitioner asserts generally that he has

10

withholding of legal documents, withholding of carbon copy paper

11

for him to use to duplicate his own copies, and separation from

12

his personal property due to having been in transit status.

13

alleges that when he refused to agree with an unspecified

14

ultimatum or stipulation, the warden deployed the “use of force

15

team” against Petitioner and put Petitioner in solitary

16

confinement in leg and body restraints.

17

seeks an injunction requiring the warden to fine the named BOP

18

staff members, pay Petitioner restitution, transfer Petitioner to

19

another institution, produce unspecified legal documents which

20

Petitioner provided to them, and explain to the Court why the

21

documents cannot be produced.

22

holding the prison staff and authorities responsible for any

23

destruction of the documents.

24
25
26

(Id. at 4.)

He

Petitioner

Petitioner further seeks an order

Petitioner’s letter or motion to produce is DEEMED to be a
motion for a temporary restraining order.
With respect to Petitioner’s motion for a temporary

27

restraining order, a review of the motion demonstrates that

28

Petitioner is challenging the conditions of his confinement, and
3

1

not the fact or duration of that confinement.

2

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

3

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

4

shows that the custody violates the Constitution, laws, or

5

treaties of the United States.

6

28 U.S.C. § 2241(c)(3).

A federal court may not entertain an action over which it

7

has no jurisdiction.

8

(9th Cir. 2000).

9

Hernandez v. Campbell, 204 F.3d 861, 865

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

10

in custody under the authority of the United States if the

11

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

12

Constitution or laws or treaties of the United States.”

13

U.S.C. § 2241(c)(1) & (3).

14

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

15

duration of his confinement.

16

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

17

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

18

to the extent that the prisoner seeks damages or injunctive

19

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

20

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

21

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

22

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

23

28

Specifically, a habeas corpus action

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

However,

See,

Since Petitioner’s motion seeks to challenge the conditions

24

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

25

confinement, these particular claims are cognizable in a Bivens

26

action rather than in a petition for writ of habeas corpus.

27
28

Accordingly, the motion for a temporary restraining order
will be denied.
4

1

III.

2

Accordingly, it is hereby ORDERED that:

3

1.

4
5
6
7
8
9

Disposition

The Findings and Recommendations filed on July 5, 2012,

are ADOPTED in full; and
2.

Petitioner’s motion for a temporary restraining order

(doc. 10) is DENIED; and
3.

Petitioner’s letter or motion to produce (doc. 25) is

DEEMED to be a motion for a temporary restraining order; and
4.

Petitioner’s motion for a temporary restraining order

10

(doc. 25) is DENIED.

11

IT IS SO ORDERED.

12
13

Dated:
0m8i78

October 26, 2012
CHIEF UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5