Cruz v. Dickinson

Filing 6

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/30/09 ORDERING that Petitioners 2 motion to proceed in forma pauperis is GRANTED; and Clerk is directed to randomly assign a United States District Judge to this action; RECOMMENDING that petitioners 1 petition for writ of habeas corpus be dismissed without prejudice; and this action be closed. Randomly assigned and referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 20 days.(Dillon, M)

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. KATHLEEN DICKINSON, Warden, Respondent. / 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). PRELIMINARY SCREENING Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Rule 4, Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may 1 ORDER AND FINDINGS AND RECOMMENDATIONS ALBERT CRUZ, Petitioner, No. CIV S-09-2046 DAD P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record." BACKGROUND On July 24, 2009, petitioner commenced this action by filing a petition for writ of habeas corpus. Therein, petitioner alleges that he is not receiving proper mental health or substance abuse treatment at California Medical Facility. Plaintiff alleges that if he does not receive proper treatment he will "use" again when he is released in 2010. Plaintiff further alleges that he believes that he will commit additional crimes to support his drug-use habit if he does not receive proper treatment while incarcerated. (Pet. at 5 & Attach.) ANALYSIS The instant petition should be dismissed because petitioner has failed to state a cognizable claim for federal habeas relief. Petitioner is advised that habeas corpus proceedings are the proper mechanism for a prisoner seeking to challenge the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, petitioner does not challenge the legality of his conviction, a parole proceeding, or other adjudication that has led to his current incarceration. Rather, petitioner challenges the conditions of his confinement. Petitioner is advised that a civil rights action, not a habeas corpus proceeding, is the proper mechanism for a prisoner seeking to challenge the conditions of his confinement. 42 U.S.C. § 1983; Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Accordingly, petitioner is not entitled to habeas corpus relief, and this habeas action should be dismissed without prejudice to filing a civil rights action. ///// ///// ///// 2

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DAD:9 cruz2046.156

CONCLUSION IT IS HEREBY ORDERED: 1. Petitioner's July 24, 2009 motion to proceed in forma pauperis (Doc. No. 2) is granted; and 2. The Clerk of the Court is directed to randomly assign a United States District Judge to this action. IT IS HEREBY RECOMMENDED that: 1. Petitioner's July 24, 2009 petition for writ of habeas corpus (Doc. No. 1) be dismissed without prejudice to filing a civil rights action; and 2. This action be closed. 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 30, 2009.

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