Kurbegovich v. Unknown Politicians

Filing 9

ORDER Vacating FINDINGS and RECOMMENDATIONS To DISMISS The Petition For Petitioner's Failure To Respond To Consent Orders (Doc. 6 ), FINDINGS And RECOMMENDATIONS To Dismiss The Petition Without Leave To Amend (Doc. 1 ), Decline To Issue A Cert ificate Of Appealability, And Direct The Clerk To Close The Case, Objections Deadline: Thirty (30) Days, signed by Magistrate Judge Sheila K. Oberto on 12/9/2014. F&R's referred to Judge Lawrence J. O'Neill.( Objections to F&R due by 1/12/2015) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 MUHAREM KURBEGOVICH,

Case No. 1:14-cv-01202-LJO-SKO-HC

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ORDER VACATING FINDINGS AND
RECOMMENDATIONS TO DISMISS THE
PETITION FOR PETITIONER’S FAILURE
TO RESPOND TO CONSENT ORDERS (DOC.
6)

Petitioner,

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v.

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UNKNOWN POLITICIANS,
Respondents.

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FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT LEAVE
TO AMEND (DOC. 1), DECLINE TO ISSUE
A CERTIFICATE OF APPEALABILITY, AND
DIRECT THE CLERK TO CLOSE THE CASE
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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 has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
I.

Order Withdrawing Previously Filed Findings and
Recommendations

On November 7, 2014, the Magistrate Judge filed findings and

26 recommendations to dismiss the petition for Petitioner’s failure to
27 respond to multiple orders of the Court to indicate whether or not
28 Petitioner consented to the jurisdiction of the Magistrate Judge.
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1 On November 20, 2014, Petitioner filed objections stating he had
2 previously tried to respond to consent orders.

(Doc. 7.)

In view

3 of Petitioner’s objections and considering the absence of
4 allegations in the petition that would entitle him to relief, the
5 Magistrate Judge has determined to vacate the findings and
6 recommendations filed on November 7, 2014, and to screen the
7 petition.

Accordingly, it is ORDERED that the findings and

8 recommendations filed on November 7, 2014, are VACATED.
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II.

Screening the Petition

Rule 4 of the Rules Governing ' 2254 Cases in the United States

11 District Courts (Habeas Rules) requires the Court to make a
12 preliminary review of each petition for writ of habeas corpus.

The

13 Court must summarily dismiss a petition "[i]f it plainly appears
14 from the petition and any attached exhibits that the petitioner is
15 not entitled to relief in the district court....@

Habeas Rule 4;

16 O=Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also
17 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

Habeas Rule

18 2(c) requires that a petition 1) specify all grounds of relief
19 available to the Petitioner; 2) state the facts supporting each
20 ground; and 3) state the relief requested.

Notice pleading is not

21 sufficient; the petition must state facts that point to a real
22 possibility of constitutional error.

Rule 4, Advisory Committee

23 Notes, 1976 Adoption; O=Bremski v. Maass, 915 F.2d at 420 (quoting
24 Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).

Allegations in

25 a petition that are vague, conclusory, patently frivolous or false,
26 or palpably incredible are subject to summary dismissal.
27 v. Vasquez, 908 F.2d at 491.
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Hendricks

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Further, the Court may dismiss a petition for writ of habeas

2 corpus either on its own motion under Habeas Rule 4, pursuant to the
3 respondent's motion to dismiss, or after an answer to the petition
4 has been filed.

Advisory Committee Notes to Habeas Rule 8, 1976

5 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
6 2001).

However, a petition for habeas corpus should not be

7 dismissed without leave to amend unless it appears that no tenable
8 claim for relief can be pleaded were such leave granted.

Jarvis v.

9 Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
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Here, the lengthy petition filed by Petitioner contains 187

11 pages of rambling and sometimes unintelligible narrative
12 interspersed with copies of various types of documents, including
13 correspondence, news items, and documentation from court, parole,
14 and prison administrative proceedings.

Petitioner adverts to many

15 subjects, but the basic complaint is that Petitioner is being held
16 incommunicado because he has suffered long-standing interference
17 with his prison mail, including his outgoing mail.

The petition

18 does not provide a basis for inferring that Petitioner’s complaints
19 concerning his conditions of confinement have any effect on the
20 legality or duration of his confinement.
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III.

Conditions of Confinement

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This Court has a duty to determine its own subject matter

23 jurisdiction, and lack of subject matter jurisdiction can be raised
24 on the Court’s own motion at any time.

Fed. R. Civ. P. 12(h)(3);

25 CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing City
26 of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)).

A court will

27 not infer allegations supporting federal jurisdiction.

A federal

28 court is presumed to lack jurisdiction in a particular case unless
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1 the contrary affirmatively appears; thus federal subject matter
2 jurisdiction must always be affirmatively alleged.

Fed. R. Civ. P.

3 8(a); Stock West, Inc. v. Confederated Tribes of the Colville
4 Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
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A federal court may only grant a state prisoner’s petition for

6 writ of habeas corpus if the petitioner can show that "he is in
7 custody in violation of the Constitution or laws or treaties of the
8 United States."

28 U.S.C. § 2254(a).

A habeas corpus petition is

9 the correct method for a prisoner to challenge the legality or
10 duration of his confinement.

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

11 Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973));
12 Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.

In

13 contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the
14 proper method for a prisoner to challenge the conditions of that
15 confinement.

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

16 Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee
17 Notes to Habeas Rule 1, 1976 Adoption.
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Challenges to prison disciplinary adjudications that have

19 resulted in a loss of time credits must be raised in a federal
20 habeas corpus action and not in a § 1983 action because such a
21 challenge is to the very fact or duration of physical imprisonment,
22 and the relief sought is a determination of entitlement to immediate
23 or speedier release.

Preiser v. Rodriguez, 411 U.S. 475, 500.

24 Thus, such claims are within the core of habeas corpus jurisdiction.
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The Ninth Circuit has recognized a possibility of habeas

26 jurisdiction in suits that do not fall within the core of habeas
27 corpus.

Bostic v. Carlson, 884 F.3d 1267 (9th Cir. 1989)

28 (expungement of disciplinary finding likely to accelerate
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1 eligibility for parole); Docken v. Chase, 393 F.3d 1024 (9th Cir.
2 2004) (a claim challenging the constitutionality of the frequency of
3 parole reviews, where the prisoner was seeking only equitable
4 relief, was held sufficiently related to the duration of
5 confinement).

However, relief pursuant to § 1983 remains an

6 appropriate remedy for claims concerning administrative decisions
7 made in prison where success would not necessarily imply the
8 invalidity of continuing confinement.

Docken v. Chase, 393 F.3d at

9 1030 (characterizing Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997)
10 as holding that a § 1983 suit is an appropriate remedy for
11 challenges to conditions [there, administrative placement in a sex
12 offender program affecting eligibility for parole] which do not
13 necessarily imply the invalidity of continuing confinement); Ramirez
14 v. Galaza, 334 F.3d 850, 852, 858 (9th Cir. 2003).
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Here, Petitioner’s claims do not relate to or affect the

16 duration of his confinement; they concern only the conditions of his
17 confinement.

Since Petitioner’s allegations would not entitle him

18 to relief in this proceeding, his claims should be dismissed.

Even

19 if leave to amend were granted, it is not possible Petitioner could
20 amend his petition to allege tenable conditions claims.

Petitioner

21 could not allege specific facts that demonstrate that as a result of
22 the challenged procedures, the legality or duration of Petitioner’s
23 confinement, as distinct from the conditions of his confinement, was
24 affected.
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Accordingly, Petitioner’s habeas petition should be dismissed

26 without leave to amend.
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IV.

Remedy

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Although the claims concerning conditions of confinement would
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1 not warrant relief in this proceeding, the Court could construe
2 Petitioner’s claims as a civil rights complaint brought pursuant to
3 42 U.S.C. § 1983.

See Wilwording v. Swenson, 404 U.S. 249, 251

4 (1971).
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However, reference to this Court’s docket summaries shows that

6 Petitioner has filed at least eight civil rights suits in this
7 Court.

In view of Petitioner’s demonstrated ability to bring civil

8 rights actions, and considering the uncertain and unintelligible
9 nature of the petition, the Court should not attempt to construe and
10 screen Petitioner’s petition as a civil rights complaint.

It will

11 be recommended that the Court dismiss the petition so Petitioner
12 himself may determine whether or not he wishes to raise his present
13 claims through a properly submitted civil rights complaint.
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V.

Certificate of Appealability

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Unless a circuit justice or judge issues a certificate of

16 appealability, an appeal may not be taken to the Court of Appeals
17 from the final order in a habeas proceeding in which the detention
18 complained of arises out of process issued by a state court.

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19 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
20 (2003).

A district court must issue or deny a certificate of

21 appealability when it enters a final order adverse to the applicant.
22 Rule 11(a) of the Rules Governing Section 2254 Cases.
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A certificate of appealability may issue only if the applicant

24 makes a substantial showing of the denial of a constitutional right.
25 ' 2253(c)(2).

Under this standard, a petitioner must show that

26 reasonable jurists could debate whether the petition should have
27 been resolved in a different manner or that the issues presented
28 were adequate to deserve encouragement to proceed further.
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Miller-

1 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
2 473, 484 (2000)).

A certificate should issue if the Petitioner

3 shows that jurists of reason would find it debatable whether: (1)
4 the petition states a valid claim of the denial of a constitutional
5 right, and (2) the district court was correct in any procedural
6 ruling.
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Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

8 claims in the habeas petition, generally assesses their merits, and
9 determines whether the resolution was debatable among jurists of
10 reason or wrong.

Id.

An applicant must show more than an absence

11 of frivolity or the existence of mere good faith; however, the
12 applicant need not show that the appeal will succeed.

Miller-El v.

13 Cockrell, 537 U.S. at 338.
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Here, it does not appear that reasonable jurists could debate

15 whether the petition should have been resolved in a different
16 manner.

Petitioner has not made a substantial showing of the denial

17 of a constitutional right.

Accordingly, no certificate of

18 appealability should issue.
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VI.

Recommendations

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Based on the foregoing, it is RECOMMENDED that:

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1) The petition for writ of habeas corpus be DISMISSED without

22 leave to amend for failure to state facts entitling the Petitioner
23 to relief in a proceeding pursuant to 28 U.S.C. § 2254;
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2) The Court DECLINE to construe the habeas petition as a civil

25 rights complaint;
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3) The Court DECLINE to issue a certificate of appealability;

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4) The Clerk be DIRECTED to close the action because the

28 dismissal terminates it in its entirety.
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These findings and recommendations are submitted to the United

2 States District Court Judge assigned to the case, pursuant to the
3 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
4 Rules of Practice for the United States District Court, Eastern
5 District of California.

Within thirty (30) days after being served

6 with a copy, any party may file written objections with the Court
7 and serve a copy on all parties.

Such a document should be

8 captioned AObjections to Magistrate Judge=s Findings and
9 Recommendations.@

Replies to the objections shall be served and

10 filed within fourteen (14) days (plus three (3) days if served by
11 mail) after service of the objections.

The Court will then review

12 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
13 The parties are advised that failure to file objections within the
14 specified time may result in the waiver of rights on appeal.
15 Wilkerson v. Wheeler, - F.3d -, -, no. 11-17911, 2014 WL 6435497, *3
16 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,
17 1394 (9th Cir. 1991)).
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Dated:

December 9, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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