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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES KELLY.

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No. 1:17-cv-01237-JLT (HC)
Petitioner,

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v.
FINDINGS AND RECOMMENDATION
TO DISMISS PETITION

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ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT JUDGE

DIVISION OF ADULT OPERATIONS,
Respondent.

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[TWENTY-ONE DAY OBJECTION
DEADLINE]

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Petitioner filed the instant habeas petition on September 15, 2017. The petition does not

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challenge the underlying conviction. Rather, it presents various claims concerning the conditions

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of his confinement. For this reason, the Court will recommend it be DISMISSED.
DISCUSSION

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A.

Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.

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The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of

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habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to

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dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th
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Cir.2001).

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B.

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Civil Rights Claims
Petitioner does not challenge his conviction. Rather, he presents various vague

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complaints concerning the conditions of confinement. To the extent his claims can be discerned,

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it appears Petitioner alleges his civil rights were violated when he sustained bodily injuries and

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psychological distress as a result of medication he was given on July 30, 2012.

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A habeas corpus petition is the correct method for a prisoner to challenge the “legality or

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duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser

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v. Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. §

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1983 is the proper method for a prisoner to challenge the conditions of confinement. McCarthy v.

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Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims

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are not cognizable in a federal habeas action and must be dismissed. Petitioner must seek relief

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for his complaints by way of a civil rights action.

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In Nettles, the Ninth Circuit held that a district court has the discretion to construe a

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habeas petition as a civil rights action under § 1983. Nettles v. Grounds, 830 F.3d 922, 936 (9th

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Cir. 2016). However, recharacterization is appropriate only if it is “amenable to conversion on its

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face, meaning that it names the correct defendants and seeks the correct relief,” and only after the

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petitioner is warned of the consequences of conversion and is provided an opportunity to

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withdraw or amend the petition. Id. Here, the Court does not find recharacterization to be

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appropriate. Petitioner does not name the proper defendants and the claims are not amenable to

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conversion on their face. Accordingly, the Court should not exercise its discretion to

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recharacterize the action.

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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.

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ORDER
The Court ORDERS that the Clerk of Court is DIRECTED to assign a District Judge to
the case.

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RECOMMENDATION
Accordingly, the Court RECOMMENDS that the habeas corpus petition be

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DISMISSED and the Clerk of Court be DIRECTED to provide Petitioner with a blank civil

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rights complaint form.

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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. section 636 (b)(1)(B) and Rule 304

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

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Within twenty-one days after being served with a copy, Petitioner may file written objections

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with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28

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U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

September 22, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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