Clowers v. Mims

Filing 4

FINDINGS and RECOMMENDATION to Dismiss 1 Petition for Lack of Jurisdiction; ORDER DIRECTING That Objections be Filed Within Twenty-One Days; ORDER DIRECTING That the Clerk of Court Assign a District Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 11/5/2014. This case has been assigned to District Judge Lawrence J. O'Neill and Magistrate Judge Jennifer L. Thurston. The new case number is 1:14-cv-01644-LJO-JLT. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TROY LEON CLOWERS, JR.,
Petitioner,
v.
MARGARET MIMS,
Respondent.

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Case No.: 1:14-cv-01644-JLT
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR LACK OF
JURISDICTION (Doc. 1)
ORDER DIRECTING THAT OBJECTIONS BE
FILED WITHIN TWENTY-ONE DAYS
ORDER DIRECTING THAT THE CLERK OF
COURT ASSIGN A DISTRICT JUDGE TO CASE

Petitioner is a county jail inmate proceeding in propria persona with a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on October 21, 2014. Petitioner is awaiting trial on state criminal

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charges and is currently being held in the Fresno County Jail. (Doc. 1). Petitioner alleges that he has

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been denied adequate medical treatment while being confined in the county jail. (Id.). However,

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Petitioner does not challenge the fact or duration of his present incarceration. Moreover, Petitioner

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does not allege that he has ever presented his claims to any state court.

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DISCUSSION
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of

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each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from

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the face of the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing
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2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only

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grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of

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the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a

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prisoner to challenge the “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574

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(9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S. Ct. 1827 (1973); Ramirez v.

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Galaza, 334 F.3d 850, 859 (9th Cir. 2003)(“[H]abeas jurisdiction is absent, and a § 1983 action proper,

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where a successful challenge to a prison condition will not necessarily shorten the prisoner’s

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sentence”); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.

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The Ninth Circuit has also held that “[h]abeas corpus jurisdiction also exists when a petitioner

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seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the

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prisoner’s eligibility for parole.” Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); see also

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Docken v. Chase, 393 F. 3d 1024, 1031 (9th Cir. 2004)(“[W]e understand Bostic’s use of the term

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‘likely’ to identify claims with a sufficient nexus to the length of imprisonment so as to implicate, but

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not fall squarely within, the ‘core’ challenges identified by the Preiser Court.”)

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In contrast to a habeas corpus challenge to the length or duration of confinement, a civil rights

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action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of

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confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea,

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931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.

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In this case, as mentioned, Petitioner alleges that he was seen by medical staff when he

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complained of problems in his pubic region. Petitioner further alleges that the medical employee

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recommended immediate surgery; however, over a month has elapsed and Petitioner has not received

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any further medical treatment. At no point in the petition does Petitioner challenge either the fact or

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duration of his incarceration as he awaits trial on state criminal charges.

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Petitioner is thus challenging the conditions of his confinement, not the fact or duration of that

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confinement. No relief requested by Petitioner in his petition would affect the fact or duration of

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Petitioner’s sentence, which has yet to be imposed. Therefore, Petitioner is not entitled to habeas

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corpus relief, and this petition must be dismissed. Should Petitioner wish to pursue his claims,

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Petitioner must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. Thus, the Court
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must dismiss this petition for lack of jurisdiction.
ORDER

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Accordingly, the Clerk of the Court is DIRECTED to assign a United States District Judge to
this case.
RECOMMENDATION

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For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition for writ of
habeas corpus (Doc. 1), be DISMISSED for lack of habeas jurisdiction.
This Findings and Recommendation is submitted to the United States District Court Judge
assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within twenty-one

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(21) days after being served with a copy of this Findings and Recommendation, any party may file

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written objections with the Court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be

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served and filed within ten court days (plus three days if served by mail) after service of the Objections.

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The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The

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parties are advised that failure to file objections within the specified time may waive the right to appeal

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the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

November 5, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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