Kelly v. Division of Adult Operations

Filing 4

ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Petition re 1 , signed by Magistrate Judge Jennifer L. Thurston on 9//22/17. 21-Day Objection Deadline. This Case is Assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Jennifer L. Thurston. The New Case Number is: 1:17-cv-01237-LJO-JLT. Referred to Judge O'Neill. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES KELLY. 12 No. 1:17-cv-01237-JLT (HC) Petitioner, 13 v. FINDINGS AND RECOMMENDATION TO DISMISS PETITION 14 15 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE DIVISION OF ADULT OPERATIONS, Respondent. 16 [TWENTY-ONE DAY OBJECTION DEADLINE] 17 Petitioner filed the instant habeas petition on September 15, 2017. The petition does not 18 19 challenge the underlying conviction. Rather, it presents various claims concerning the conditions 20 of his confinement. For this reason, the Court will recommend it be DISMISSED. DISCUSSION 21 22 23 A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 24 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 25 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 26 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 27 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 28 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th 1 1 Cir.2001). 2 B. 3 Civil Rights Claims Petitioner does not challenge his conviction. Rather, he presents various vague 4 complaints concerning the conditions of confinement. To the extent his claims can be discerned, 5 it appears Petitioner alleges his civil rights were violated when he sustained bodily injuries and 6 psychological distress as a result of medication he was given on July 30, 2012. 7 A habeas corpus petition is the correct method for a prisoner to challenge the “legality or 8 duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser 9 v. Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 10 1983 is the proper method for a prisoner to challenge the conditions of confinement. McCarthy v. 11 Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims 12 are not cognizable in a federal habeas action and must be dismissed. Petitioner must seek relief 13 for his complaints by way of a civil rights action. 14 In Nettles, the Ninth Circuit held that a district court has the discretion to construe a 15 habeas petition as a civil rights action under § 1983. Nettles v. Grounds, 830 F.3d 922, 936 (9th 16 Cir. 2016). However, recharacterization is appropriate only if it is “amenable to conversion on its 17 face, meaning that it names the correct defendants and seeks the correct relief,” and only after the 18 petitioner is warned of the consequences of conversion and is provided an opportunity to 19 withdraw or amend the petition. Id. Here, the Court does not find recharacterization to be 20 appropriate. Petitioner does not name the proper defendants and the claims are not amenable to 21 conversion on their face. Accordingly, the Court should not exercise its discretion to 22 recharacterize the action. 23 24 Therefore, the Court will recommend that the action be dismissed and the Clerk of Court be directed to send Petitioner a blank civil rights complaint. 25 26 27 ORDER The Court ORDERS that the Clerk of Court is DIRECTED to assign a District Judge to the case. 28 2 1 2 RECOMMENDATION Accordingly, the Court RECOMMENDS that the habeas corpus petition be 3 DISMISSED and the Clerk of Court be DIRECTED to provide Petitioner with a blank civil 4 rights complaint form. 5 This Findings and Recommendation is submitted to the United States District Court Judge 6 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 7 of the Local Rules of Practice for the United States District Court, Eastern District of California. 8 Within twenty-one days after being served with a copy, Petitioner may file written objections 9 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 10 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 11 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 12 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. Dated: September 22, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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