West v. Dickinson

Filing 58

ORDER signed by Magistrate Judge Dale A. Drozd on 6/15/2011 ORDERING that Resp's 35 Motion to Dismiss is DENIED AS MOOT. Ptnr's 51 and 52 Motions for a Stay and Abeyance are DENIED AS MOOT. Resp is directed to file a new reponse to Ptnr's Second Amended Petition within 60 days. Ptnr's 56 and 57 Motions for Preliminary Injunctive Relief are DENIED without prejudice. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MACK A. WEST, JR.,

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Petitioner,
vs.
KATHLEEN DICKINSON, Warden,
Respondent.

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No. CIV S-09-3147 FCD DAD P

ORDER
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Petitioner is a state prisoner proceeding pro se with a second amended petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On September 7, 2010, respondent filed a motion to dismiss petitioner’s second

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amended petition based on petitioner’s purported failure to exhaust his claims in state court.

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After the court had granted petitioner several extensions of time to oppose respondent’s motion

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to dismiss, petitioner filed a motion for a stay and abeyance, a renewed motion for a stay and

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abeyance, and an opposition to respondent’s motion to dismiss. Respondent has not filed a reply

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to any of petitioner’s recent filings.

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In moving to dismiss the petition, respondent argues that petitioner failed to

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exhaust claims one through five as well as claim eight of his petition. In his responses to

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respondent’s motion to dismiss, petitioner informs the court that in November or December of
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2010 he filed a petition for writ of habeas corpus containing his unexhausted claims with the

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California Supreme Court (Case No. S187901). Petitioner also seeks a stay of this action until

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the California Supreme Court rules on his exhaustion petition.

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Upon review of the California Supreme Court docket in Case No. S187901, it

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appears that the state high court denied petitioner’s exhaustion petition on May 18, 2011,

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rendering respondent’s motion to dismiss as well as petitioner’s motions for a stay and abeyance

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moot. Under these circumstances, the court will deny both parties’ motions and instruct

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respondent to file a new response to petitioner’s second amended petition.

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Petitioner has also filed two motions for preliminary injunctive relief, the first

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alleging that correctional officers have retaliated against him and transferred him to another

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prison, and the second alleging that medical staff has failed to provide him with adequate

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medical care for a lower-back injury. Petitioner is advised that a habeas corpus proceeding is the

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proper mechanism for a prisoner seeking to challenge the fact or duration of his confinement.

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Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). In contrast, a civil rights action is the proper

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mechanism for a prisoner seeking to challenge the conditions of his confinement. 42 U.S.C.

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§ 1983; Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Petitioner’s claims set out in his two

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motions for preliminary injunctive relief concern his conditions of confinement and therefore

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should be raised in a separate civil rights action if he wishes to pursue them.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent’s motion to dismiss (Doc. No. 35) is denied as moot;

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2. Petitioner’s motion for a stay and abeyance and renewed motion for a stay and

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abeyance (Doc. Nos. 51 & 52) are denied as moot;
3. Respondent is directed to file a new response to petitioner’s second amended

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petition within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254

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Cases. Any answer filed shall be accompanied by all transcripts and other documents relevant to

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the issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases;
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4. If the response is an answer, petitioner’s reply, if any, shall be filed and served
within thirty days after service of the answer;

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5. If the response is a motion, petitioner’s opposition or statement of non-

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opposition to the motion shall be filed and served within thirty days after service of the motion,

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and respondent’s reply, if any, shall be filed and served within fourteen days thereafter; and

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6. Petitioner’s motions for preliminary injunctive relief (Doc. Nos. 56 & 57) are

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denied without prejudice to the filing of a separate civil rights action if petitioner wishes to

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pursue his retaliation and inadequate medical care claims.

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DATED: June 15, 2011.

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DAD:9
west3147.moot

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