Neale v. Sherman

Filing 5

ORDER to SHOW CAUSE Why the Petition Should Not Be Dismissed for Failure to State a Cognizable Claim signed by Magistrate Judge Michael J. Seng on 11/9/2017. Show Cause Response due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH NEALE JR.,
Petitioner,

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v.

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ORDER TO SHOW CAUSE WHY THE
PETITION SHOULD NOT BE DISMISSED
FOR FAILURE TO STATE A COGNIZABLE
CLAIM

STU SHERMAN, Warden,

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Case No. 1:17-cv-01499-MJS (HC)

Respondent.

(ECF NO. 1)
THIRTY (30) DAY DEADLINE
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Petitioner is proceeding pro se with a petition for writ of habeas corpus under 28

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U.S.C. § 2254. He is incarcerated at the California Substance Abuse Treatment Facility

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in Corcoran, California. He complains of property being lost or stolen during a cell

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transfer.

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I.

Discussion

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A.

Procedural Grounds for Summary Dismissal

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Rule 4 of the Rules Governing Section 22541 Cases provides in pertinent part:

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The Rules Governing Section 2254 Cases may be applied to petitions for writ of habeas corpus other
than those brought under § 2254 at the Court’s discretion. See, Rule 1(b) of the Rules Governing Section
2254 Cases. Civil Rule 81(a)(4) provides that the rules “apply to proceedings for habeas corpus . . . to the
extent that the practice in such proceedings is not specified in a federal statute, the Rules Governing
Section 2254 Cases, or the Rules Governing 2255 Cases; and has previously conformed to the practice in
civil actions.” Fed. R. Civ. P. 81(a)(4).

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If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct the clerk
to notify the petitioner.

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The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a
petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the
respondent’s motion to dismiss, or after an answer to the petition has been filed. A
petition for habeas corpus should not be dismissed without leave to amend unless it
appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis
v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
B.

Failure to State Cognizable Claim

A federal court may only grant a petition for writ of habeas corpus if the petitioner
can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. §
2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the
“legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir.
1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee
Notes to Rule 1 of the Rules Governing Section 2254 Cases.
In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method
for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500
U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory
Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
Petitioner’s claims do not implicate the fact or duration of his confinement.
Petitioner does not challenge his underlying detention but rather his conditions of his
confinement, specifically the loss of his property. Petitioner's claims, even if meritorious,
would not provide a basis for federal habeas jurisdiction.
A petition for habeas corpus should not be dismissed without leave to amend
unless it appears that no tenable claim for relief can be pleaded were such leave
granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). Here, it is not entirely unclear
that Plaintiff cannot state a cognizable claim. He therefore will be provided the
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opportunity to file an amended petition.

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II.

Order

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Petitioner is ORDERED TO SHOW CAUSE why the petition should not be

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dismissed for Petitioner's failure to state cognizable habeas claims. Petitioner is

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ORDERED to file an amended petition for writ of habeas corpus within thirty (30) days of

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the date of service of this order. Petitioner is forewarned that failure to comply with this

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order will result in dismissal of the petition.

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IT IS SO ORDERED.
Dated:

November 9, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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