Vera v. Gipson
Filing
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ORDER Adopting 7 FINDINGS AND RECOMMENDATIONS; ORDER DISMISSING Petitioner's First through Fourth Claims Without Leave to Amend, DISMISSING Petitioner's 10 Order to Show Cause and 11 Motion for Injunctive Relief, and REFERRING Matter back to the Magistrate Judge for Proceedings on the Remaining Claim(s) signed by District Judge Anthony W. Ishii on 11/8/2013. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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Case No. 1:13-cv-00814-AWI-SKO-HC
6 GUILLERMO VERA,
Petitioner,
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v.
CONNIE GIPSON,
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Respondent.
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ORDER RE: FINDINGS AND
RECOMMENDATIONS (DOC. 7)
ORDER DISMISSING PETITIONER’S FIRST
THROUGH FOURTH CLAIMS WITHOUT LEAVE
TO AMEND (DOC. 1), DISMISSING
PETITIONER’S ORDER TO SHOW CAUSE AND
MOTION FOR INJUNCTIVE RELIEF (DOCS.
10, 11), AND REFERRING THE MATTER
BACK TO THE MAGISTRATE JUDGE FOR
PROCEEDINGS ON THE REMAINING
CLAIM(S)
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Petitioner is a state prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.
The matter was referred to the Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
I.
Findings and Recommendations
On July 16, 2013, the Magistrate Judge filed findings and
recommendations to dismiss without leave to amend Petitioner’s first
through fourth claims because they are not cognizable in this
proceeding, and to refer the matter back to the Magistrate Judge for
further proceedings with respect to the claim or claims remaining in
the petition.
The findings and recommendations were served on all
parties on the same date.
The findings and recommendations advised
the parties that objections could be filed within thirty days and
replies within fourteen days after the filing of objections.
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Although on August 20, 2013, Petitioner was given an extension of
time to file objections, Petitioner did not thereafter file timely
objections; rather, Petitioner filed a motion for an order to show
cause and a motion for a preliminary injunction on October 9, 2013.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C),
this Court has conducted a de novo review of the case.
has considered the entire file.
The Court
Further, although they are not
submitted as objections, Petitioner’s order to show cause and motion
for a preliminary injunction, which are addressed more fully herein,
were considered; however, the Court concludes that they did not
require modification of the findings and recommendations.
The Court
finds that the report and recommendations are supported by the
record and proper analysis.
Accordingly, the findings and recommendations will be adopted
in full.
II.
Order to Show Cause and Motion for a Preliminary
Injunction
Because Petitioner sought an extension of time to file
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objections and may have intended his filings regarding the
21 preliminary injunction to constitute objections, the Court has
22 reviewed the filings.
Petitioner’s order to show cause (doc. 10)
23 appears to be a form for scheduling a hearing on an application for
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injunctive relief; Petitioner appears to ask that the Respondent
Warden Gipson be directed to show cause why Respondent should not be
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restrained from harassing, punishing, and retaliating in any way
28 against “Defendant” for filing “this complaint.”
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(Doc. 10.)
The
1 declaration or affidavit submitted with the request appears to be
2 entirely in the Spanish language.
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Petitioner appends to the
document a copy of 28 U.S.C. § 1828, part of the Court Interpreters
Act, which provides for the provision of interpreters “in criminal
actions and in civil actions initiated by the United States
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8 name of the United States by relators) in a United States district
9 court.”
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28 U.S.C. § 1828(a).
Here, Petitioner is not a party to a case that was initiated by
the United States, whether by relators or otherwise; thus, it does
not appear that Petitioner comes within the express terms of 28
14 U.S.C. §§ 1827 and 1828, which limit the circumstances in which
15 interpreters are to be provided by statute to judicial proceedings
16 instituted by the United States; the only exception is with respect
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to a party, witness, or other participant in a judicial proceeding,
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whether or not the proceeding is instituted by the United States,
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20 where there is a finding that the person suffers from a hearing
21 impairment and needs a sign language interpreter.
22 1827(j), (l).
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28 U.S.C. §
There is no suggestion that this exception applies to
Petitioner.
The United States Supreme Court has not held that there is a
freestanding, constitutional right to the assistance of an
27 interpreter; rather, provision of an interpreter is generally within
28 the trial court’s discretion.
United States v. Si, 333 F.3d 1041,
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1 1043 n.3 (9th Cir. 2003) (citing Perovich v. United States, 205 U.S.
2 86, 91 (1907)).
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In this circuit, it has been recognized that in
some circumstances an interpreter may be essential to a fair trial
and constitutionally required for a criminal defendant in trial
proceedings, such as where an interpreter’s services are necessary
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8 counsel, or preservation of a defendant’s rights to confrontation,
9 cross-examination, or to testify in one’s own behalf.
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See, Chacon
v. Wood, 36 F.3d 1459, 1464 (9th Cir. 1994), overruled on other
grounds by 28 U.S.C. § 2254 (need for interpreter to facilitate the
effective assistance of counsel); United States v. Si, 3233 F.3d at
14 1043 (collecting cases).
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Here, Petitioner is not a criminal defendant, but rather is an
16 initiating party who is proceeding with a petition for writ of
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habeas corpus. A substantial portion of the habeas petition pending
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in this action is in the English language. Petitioner has not
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20 established a factual or legal basis for an entitlement to an
21 interpreter in the present proceeding.
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Accordingly, to the extent that Petitioner is requesting an
interpreter in order for him to proceed in this action, Petitioner’s
request will be denied.
Further, although the document supporting Petitioner’s motion
27 for a preliminary injunction is not in the English language and thus
28 is not comprehended by the Court, insofar as the motion is in
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1 English, it appears to seek an order directing the warden and prison
2 staff not to retaliate or harass Petitioner.
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It thus appears that
the motion for an injunction challenges the conditions of
Petitioner’s confinement, and not the fact or duration of that
confinement.
It is established that a federal court may only grant a
8 petition for writ of habeas corpus if the petitioner can show that
9 "he is in custody in violation of the Constitution or laws or
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treaties of the United States."
28 U.S.C. ' 2254(a).
A habeas
corpus petition is the correct method for a prisoner to challenge
the legality or duration of his confinement.
Badea v. Cox, 931 F.2d
14 573, 574 (9th Cir. 1991)(quoting Preiser v. Rodriguez, 411 U.S. 475,
15 485 (1973)); Advisory Committee Notes to Rule 1 of the Rules
16 Governing Section 2254 Cases, 1976 Adoption.
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In contrast, a civil rights action pursuant to 42 U.S.C. ' 1983
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is the proper method for a prisoner to challenge the conditions of
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20 that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991);
21 Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee
22 Notes to Rule 1 of the Rules Governing Section 2254 Cases, 1976
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Adoption.
Because in the motion Petitioner seeks to challenge the
conditions of his confinement, and not the legality or duration of
27 his confinement, his claim or claims concerning entitlement to
28 injunctive relief are cognizable in a civil rights action rather
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1 than a petition for writ of habeas corpus.
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Accordingly, Petitioner’s motion for injunctive relief will be
dismissed.
III.
Disposition
Accordingly, it is ORDERED that:
1) The findings and recommendations filed on July 16, 2013, are
8 ADOPTED in full; and
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2) Petitioner’s first through fourth claims are DISMISSED
without leave to amend because they are not cognizable in a
proceeding pursuant to 28 U.S.C. § 2254; and
3) Petitioner’s request for an order to show cause and motion
14 for a preliminary injunction are DISMISSED because they are not
15 cognizable in this proceeding; and
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4)
The matter is REFERRED back to the Magistrate Judge for
17 further proceedings on the remaining due process claim or claims in
18 the petition, including preparation of an order directed to the
19 Respondent to respond to the remaining due process claim or claims
20 in the petition.
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Dated: November 8, 2013
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SENIOR DISTRICT JUDGE
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