(HC) Roberts v. Huckleberry et al

Filing 7

ORDER Directing Clerk of Court to Assign District Judge - CASE ASSIGNED to District Judge Dale A. Drozd and Magistrate Judge Jennifer L. Thurston. New Case No. 1:18-cv-01538 DAD JLT (HC); FINDINGS and RECOMMENDATION to Dismiss Amended Petition, signed by Magistrate Judge Jennifer L. Thurston on 12/4/2018: 21-Day Objection Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Petitioner,
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v.
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STEPHEN HENDERSON, Associate Warden, )
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Respondent.
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DAVID ROBERTS,

Case No.: 1:18-cv-01538-JLT (HC)
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE
FINDINGS AND RECOMMENDATION TO
DISMISS AMENDED PETITION
[TWENTY-ONE DAY OBJECTION DEADLINE]

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Petitioner filed a federal habeas petition on October 5, 2018. (Doc. 1.) After conducting a

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preliminary screening, the Court found the petition to be deficient in several respects: Petitioner failed

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to state a cognizable federal claim; he failed to name a proper respondent; and, he failed to

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demonstrate exhaustion of state remedies. Therefore, the Court dismissed the petition and directed

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Petitioner to file a First Amended Petition curing those deficiencies. (Doc. 5.)

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On December 3, 2018, Petitioner filed a First Amended Petition. (Doc. 6.) The Court has

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reviewed the petition and finds that it does not present cognizable habeas claims and the deficiency

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cannot be cured. Therefore, the Court will RECOMMEND the petition be DISMISSED.

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I.

DISCUSSION

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A. Preliminary Review of Petition

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Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary

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review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it

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plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in

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the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory

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Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus,

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either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an

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answer to the petition has been filed.

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B. Civil Rights Allegations

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Petitioner does not challenge his conviction. Rather, he presents various vague complaints

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concerning conditions of confinement. He asserts he was assaulted and beaten by staff on July 27,

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2018. He alleges that “STAFF are now having ‘I/M’s’ to ‘kill’ me, since they are ‘succeeding’ in the

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‘case’ I ‘filed’ to ‘sue’ on ‘KVSP Officers.’” (Doc. 6 at 3.)

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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 v.

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Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is

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the proper method for a prisoner to challenge the conditions of confinement. McCarthy v. Bronson,

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500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims are not

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cognizable in a federal habeas action and must be dismissed. Petitioner must seek relief for his

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complaints by way of a civil rights action.

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In Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016), the Ninth Circuit held that a district

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court has the discretion to construe a habeas petition as a civil rights action under § 1983. However,

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recharacterization is appropriate only if it is “amenable to conversion on its face, meaning that it

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names the correct defendants and seeks the correct relief,” and only after the petitioner is warned of

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the consequences of conversion and is provided an opportunity to withdraw or amend the petition. Id.

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Here, the Court does not find recharacterization to be appropriate. Petitioner does not name the proper

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defendants and the claims are not amenable to conversion on their face. Accordingly, the Court

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should not exercise its discretion to recharacterize the action.

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Therefore, the Court will recommend that the action be dismissed and the Clerk of Court be

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directed to send Petitioner a blank civil rights complaint.

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ORDER

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The Court DIRECTS the Clerk of Court to assign a District Judge to the case.
RECOMMENDATION

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

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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 with the

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

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Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §

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

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

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IT IS SO ORDERED.
Dated:

December 4, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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