Martin v. Walker

Filing 7

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 7/28/09 ORDERING that petitioner's 2 application to proceed IFP is GRANTED; respondents to file a response to the petition for writ of habeas corpus w/in 6 0 days; reply due w/in 30 days of answer; if response is a motion, opposition or statement of non-opposition due w/in 30 days of motion, reply due w/in 15 days thereafter; and clerk to serve copies of this order along w/ the petition for writ of habe as corpus and the form re consent or reassignment on Michael Patrick Farrell; and RECOMMENDING that petitioner's Eighth Amendment claim be dismissed w/ prejudice; Referred to Judge Lawrence K. Karlton; Objections to F&R due w/in 20 days. (cc: Michael Farrell)(Yin, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. J. WALKER, et al., Respondents. / Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a). Petitioner alleges that he was denied due process during a prison disciplinary hearing following which he was found guilty of battery on his cellmate. Petitioner also alleges that the decision by prison officials to house him with a cellmate, when he had previously been single celled, violated the Eighth Amendment. ///// 1 ORDER AND FINDINGS AND RECOMMENDATIONS O.Z. MARTIN, Petitioner, No. CIV S-09-1929 GGH P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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Petitioner's Eighth Amendment claim does not implicate the validity of his prison disciplinary conviction. In other words, even if the court found that petitioner should not have been single celled, this finding would not necessarily invalidate his prison disciplinary conviction. Because petitioner's Eighth Amendment claim challenges a condition of confinement, it is more properly raised in a civil rights action. For this reason, the court recommends that the Eighth Amendment claim be dismissed without prejudice. Since petitioner may be entitled to relief if the claimed violation of his due process rights is proved, respondents will be directed to file a response to petitioner's habeas petition for this issue only. In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner's application to proceed in forma pauperis (no. 2) is granted; 2. Respondents are directed to file a response to petitioner's habeas petition within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases; 3. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer; 4. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondents' reply, if any, shall be filed and served within fifteen days thereafter; 5. The Clerk of the Court shall serve a copy of this order, the consent/reassignment form contemplated by Appendix A(k) to the Local Rules of this court together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General; ///// 2

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IT IS HEREBY RECOMMENDED that petitioner's Eighth Amendment claim be dismissed without prejudice. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: July 28, 2009 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE

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