Neale v. Sherman

Filing 5

ORDER directing Clerk of Court to assign District Judge; case assigned to District Judge Dale A. Drozd, new case number 1:17-cv-01492-DAD-JLT-(HC).FINDINGS and RECOMMENDATIONS to summarily dismiss Petition 1 signed by Magistrate Judge Jennifer L. Thurston on 11/11/2017. Referred to Judge Dale A. Drozd; Objections to F&R due by 12/7/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH NEALE, JR..

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Petitioner,

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No. 1:17-cv-01492-JLT (HC)
ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT JUDGE

v.
STU SHERMAN, Warden,

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Respondent.

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FINDINGS AND RECOMMENDATION
TO SUMMARILY DISMISS PETITION
[TWENTY-ONE DAY OBJECTION
DEADLINE]

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Petitioner filed a petition for writ of habeas corpus on November 6, 2017. The petition

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does not challenge the underlying conviction but presents various claims concerning the

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conditions of his confinement. Because habeas corpus is not the proper avenue for seeking relief

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for conditions of confinement, the Court will recommend the petition 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. He claims that he is a mobility-impaired

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inmate, and he is not being provided a seated walker, a seat cushion, and a double mattress. A

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

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

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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.
RECOMMENDATION
Accordingly, the Court RECOMMENDS that the habeas corpus petition be DISMISSED
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and the Clerk of Court be DIRECTED to provide Petitioner with a blank civil rights complaint

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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:

November 11, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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