Soto v. Fresno County Jail et al

Filing 4

FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Lack of Habeas Jurisdiction; ORDER Directing Objections to be Filed within Twenty-One Days signed by Magistrate Judge Jennifer L. Thurston on 12/2/2015. Referred to Judge Ishii; Objections to F&R due by 12/28/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARMELO SOTO,

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Petitioner,

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v.
FRESNO COUNTY JAIL, et al.,

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Respondents.

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Case No.: 1:15-cv-01755-JLT
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR LACK OF HABEAS
JURISDICTION (Doc. 1)
ORDER DIRECTING OBJECTIONS TO BE FILED
WITHIN TWENTY-ONE DAYS
ORDERING DIRECTING CLERK OF THE
COURT TO ASSIGN DISTRICT JUDGE TO CASE

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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, which was filed on November 19, 2015.. Petitioner alleges that

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he is in custody of Fresno County Jail, serving a sentence of ninety days, because of an October 6,

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2015 conviction for undisclosed crimes in the Fresno County Superior Court. (Doc. 1, p. 1).

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However, Petitioner does not challenge either his conviction or sentence. Instead, as grounds for

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relief, Petitioner alleges that the Fresno County Jail has failed to provide needed medical services, i.e.,

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an MRI or other test to determine if Petitioner has spinal damage. (Doc. 1, p. 4).

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I.

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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 because of a prior fall from a truck, he suffers

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from pain and lack of mobility in his back. Petitioner requests an MRI and other medical treatment for

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

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

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Petitioner’s sentence. Therefore, Petitioner is not entitled to habeas corpus relief, and this petition

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must be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a

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civil rights complaint pursuant to 42 U.S.C. § 1983.

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ORDER

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

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Accordingly, the Court HEREBY RECOMMENDS that the habeas corpus petition be
DISMISSED for Petitioner’s failure to state any cognizable federal habeas claims.

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This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within 21

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days after being served with a copy, any party may file written objections with the court and serve a

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copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendation.” Replies to the objections shall be served and filed within 10 court days (plus

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three days if served by mail) after service of the objections. The Court will then review the Magistrate

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Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order. Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

December 2, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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