Burgess v. Rios

Filing 40

FINDINGS and RECOMMENDATIONS to Deny Petitioner's Motions for an Order to Show Cause Re: Transfer 35 , 36 OBJECTIONS DEADLINE: THIRTY (30) DAYS, signed by Magistrate Judge Sheila K. Oberto on 1/8/13. (Hellings, J)

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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 MOTIONS FOR AN
ORDER TO SHOW CAUSE RE: TRANSFER
(DOCS. 35, 36)
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state 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 are Petitioner’s motions

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to direct Respondent to show cause why it was necessary to
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transfer Petitioner, which were filed on October 29, 2012, and
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November 6, 2012.

The two motions are substantively identical in

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all respects.

Petitioner served his second motion on the

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Respondent.

(Doc. 36, 2.)

Respondent did not file any

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opposition.
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I.

Background

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Petitioner’s petition was filed on May 11, 2012.
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On May 30,

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2012, the Court directed Respondent to file an answer.

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30, 2012, Respondent answered the petition.

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traverse on September 24, 2012.

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Petitioner seeks this Court to direct Respondent to show cause

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why it is necessary to transfer Petitioner.

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the instant motions, Petitioner filed notices of two changes of

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address which indicated that he had ultimately been transferred

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to a federal correctional institution in Florence, Colorado.

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II.

On August

Petitioner filed a

In the instant motions,

After the filing of

Petitioner’s Motion for Injunctive Relief

Petitioner’s petition addresses his sentence computation

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and security classification.

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address the necessity of transferring Petitioner and seek an

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order directing the Respondent to show cause why any such

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transfer is necessary.

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seeking injunctive relief against the warden of his previous

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institution of confinement in connection with the choice of

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Petitioner’s custodial institution.

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is challenging the conditions of his confinement, and not the

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fact or duration of that confinement.

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(Ans., doc. 28, 1.)

His motions

It thus appears that Petitioner is

It appears that Petitioner

A federal court may not entertain an action over which it

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has no jurisdiction.

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(9th Cir. 2000).

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extends to a person in custody under the authority of the United

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States if the petitioner can show that he is “in custody in

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violation of the Constitution or laws or treaties of the United

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States.”

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corpus action is the proper mechanism for a prisoner to challenge

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the fact or duration of his confinement.

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

Relief by way of a writ of habeas corpus

28 U.S.C. § 2241(c)(1) & (3).

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Specifically, a habeas

Preiser v. Rodriguez,

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411 U.S. 475, 485 (1973); Badea v. Cox, 931 F.2d 573, 574 (9th

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Cir. 1991); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990).

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However, to the extent that the prisoner seeks damages or

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injunctive relief for civil rights violations, the prisoner’s

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claim or claims are properly brought in an action pursuant to

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Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388

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(1971).

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

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 Bivens action rather

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than in a petition for writ of habeas corpus.

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notes that Petitioner’s own submissions in this case reflect that

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Petitioner has already been transferred.

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longer give any effective relief with respect to the transfer

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anticipated by Petitioner because the transfer has already been

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effected.

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Further, the Court

Thus, the Court can no

Petitioner’s motions are thus essentially moot.

A petition

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for writ of habeas corpus is moot where a petitioner’s claim for

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relief cannot be redressed by a favorable decision of the court

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issuing a writ of habeas corpus.

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996, 1000-01 (9th Cir. 2005) (quoting Spencer v. Kemna, 523 U.S.

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1, 7 (1998)).

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Union High School District, 228 F.3d 1092, 1098-99 (9th Cir.

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2000).

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remains before the Court to be remedied.

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U.S. 1, 18 (1998).

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Burnett v. Lampert, 432 F.3d

Mootness is jurisdictional.

See, Cole v. Oroville

Thus, a moot petition must be dismissed because nothing
Spencer v. Kemna, 523

To the extent that Petitioner seeks relief in the form of
orders to his previous custodian concerning transfer,
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Petitioner’s claim is moot and should be dismissed.

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it will be recommended that the motion for injunctive relief be

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denied.

Accordingly,

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III.

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In accordance with the foregoing, it is RECOMMENDED that

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Recommendation

Petitioner’s motion 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).

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

January 8, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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