Morse v. Calif Department of Corrections et al

Filing 10

ORDER DIRECTING Clerk of Court to ASSIGN District Judge; FINDINGS and RECOMMENDATION to Summarily Dismiss Unexhausted 1 Petition; Twenty-one Day Objection Deadline signed by Magistrate Judge Jennifer L. Thurston on 3/3/2017. Referred to Judge Dale A. Drozd. The new case number is 1:17-cv-00296-DAD-JLT(HC). (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL MORSE. 12 Petitioner, 13 14 15 No. 1:17-cv-00296-JLT (HC) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE v. CALIFORNIA DEPARTMENT OF CORRECTIONS, Respondent. 16 FINDINGS AND RECOMMENDATION TO SUMMARILY DISMISS UNEXHAUSTED PETITION [TWENTY-ONE DAY OBJECTION DEADLINE] 17 18 Petitioner filed a petition for writ of habeas corpus on February 22, 2017, in the 19 Sacramento Division of this Court. Because Petitioner filed a form habeas petition and he was 20 convicted in the Kern County Superior Court, the petition was transferred to the Fresno Division. 21 However, the petition does not challenge the underlying conviction. Rather, it presents various 22 claims concerning the conditions of his confinement. For this reason, the Court will recommend it 23 be DISMISSED. DISCUSSION 24 25 26 A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 27 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 28 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 1 1 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 2 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 3 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th 4 Cir.2001). 5 B. 6 Civil Rights Claims Petitioner does not challenge his conviction. Rather, he presents various vague 7 complaints concerning the conditions of confinement. To the extent his claims can be discerned, 8 it appears Petitioner alleges he suffers from multiple disabilities due to officer brutalities, 9 excessive force, and inhumane treatment. (Pet. at 5.) He also appears to complain of interference 10 with his legal mail, harassment, and retaliation. (Pet. at 5.) 11 A habeas corpus petition is the correct method for a prisoner to challenge the “legality or 12 duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser 13 v. Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 14 1983 is the proper method for a prisoner to challenge the conditions of confinement. McCarthy v. 15 Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims 16 are not cognizable in a federal habeas action and must be dismissed. Petitioner must seek relief 17 for his complaints by way of a civil rights action. 18 In Nettles, the Ninth Circuit held that a district court has the discretion to construe a 19 habeas petition as a civil rights action under § 1983. Nettles v. Grounds, 830 F.3d 922, 936 (9th 20 Cir. 2016). However, recharacterization is appropriate only if it is “amenable to conversion on its 21 face, meaning that it names the correct defendants and seeks the correct relief,” and only after the 22 petitioner is warned of the consequences of conversion and is provided an opportunity to 23 withdraw or amend the petition. Id. Here, the Court does not find recharacterization to be 24 appropriate. Petitioner does not name the proper defendants and the claims are not amenable to 25 conversion on their face. Moreover, the claims appear to stem from actions which occurred in the 26 California State Prison in Sacramento, and venue would therefore lie in Sacramento. Finally, 27 Petitioner appears to raise claims related to conditions he is currently experiencing. Accordingly, 28 the Court should not exercise its discretion to recharacterize the action. 2 1 Therefore, the Court will recommend that the action be dismissed and the Clerk of Court 2 be directed to send Petitioner a blank civil rights complaint. Petitioner is advised that to the 3 extent he is challenging the conditions of his confinement in Sacramento, the proper venue for his 4 complaint is the Sacramento Division of this Court. 5 6 7 ORDER The Court ORDERS that the Clerk of Court is DIRECTED to assign a District Judge to the case. 8 9 RECOMMENDATION Accordingly, the Court RECOMMENDS that the habeas corpus petition be 10 DISMISSED and the Clerk of Court be DIRECTED to provide Petitioner with a blank civil 11 rights complaint form. 12 This Findings and Recommendation is submitted to the United States District Court Judge 13 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 14 of the Local Rules of Practice for the United States District Court, Eastern District of California. 15 Within twenty-one days after being served with a copy, Petitioner may file written objections 16 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 17 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 18 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 IT IS SO ORDERED. Dated: March 3, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3

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