Perez v. McDonald et al

Filing 28

ORDER signed by Judge Morrison C. England, Jr on 4/6/11 ORDERING respondent's motion to dismiss 17 GRANTED and the Court DECLINES to follow the Magistrate Judge's Findings and Recommendations 23 ; and petitioner may file a second amended complaint pursuant to 28:1983 within 20 days of the electronic filing of this order. (Carlos, K)

-JFM (HC) Perez v. McDonald et al

Doc. 28

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 27 28 Through this petition for a writ of habeas corpus, Fernando Avila Perez, Jr. ("Petitioner") challenges his validation as a member of the Northern Structure prison gang and subsequent transfer to administrative segregation. On September 22, 2010, v. MCDONALD, et al., Respondent. ----oo0oo---FERNANDO AVILA PEREZ, JR., Petitioner, MEMORANDUM AND ORDER No. 2:10-cv-01984-MCE-JFM UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Respondent moved to dismiss for failure to state a cognizable claim for habeas corpus relief pursuant to 28 U.S.C. § 2254(d). (ECF No. 17.) On January 14, 2011, the Magistrate Judge assigned

to the case issued findings and recommendations, concluding that Respondent's motion to dismiss should be denied. (ECF No. 23.)

Respondent filed objections to the Magistrate Judge's Findings. /// 1

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Upon de novo review, the Court concludes that the findings and recommendations should not be adopted, and Respondent's motion to dismiss should be granted. Petitioner is currently in the custody of the State of California at High Desert State Prison. (Pet'r's Compl. 1.) The

instant habeas petition challenges Petitioner's validation as an associate of the Northern Structure prison gang. (Id.) As a

result of his gang validation, Petitioner is currently in administrative segregation, and has been endorsed for transfer to a Secure Housing Unit. (Id. 6-7.) Petitioner claims that his

gang validation deprived him of due process because it was not supported by sufficient evidence. (Id.)

However, the Court lacks jurisdiction to consider the merits of the instant petition because Petitioner challenges only the conditions of his confinement. A district court has jurisdiction

to consider an application for a writ of habeas corpus on behalf of a prisoner in custody pursuant to a judgement of a state court only on the ground that said custody violates federal law. 28 U.S.C. § 2254. The Magistrate Judge determined that the Court

has jurisdiction over the instant petition relying on Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989). Bostic held that "habeas

corpus jurisdiction is also available for a prisoner's claims that he has been subjected to greater restrictions of his liberty, such as disciplinary segregation, without due process of law." /// /// /// 2 Id. at 1268.

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However, Bostic was decided in the context of a habeas petition made pursuant to 28 U.S.C. § 2241, and did not involve a state prisoner. Further, in Ramirez v. Galaza, which followed

Bostic and involved a state prisoner, the 9th Circuit held that "habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence." 850, 859 (9th Cir. 2003). Ramirez v. Galaza, 334 F.3d

See also Docken v. Chase, 393 F.3d

1024, 1030 n.4 (9th Cir. 2004) (implicitly upholding the conclusion of Ramirez, that habeas corpus jurisdiction is unavailable for a state prisoner's challenge to internal disciplinary procedures and resulting administrative segregation). Because the instant petition challenges only internal disciplinary procedures and Petitioner's resulting administrative segregation, the Court does not have habeas corpus jurisdiction. The proper vehicle for a challenge to the conditions of imprisonment is a civil rights action pursuant to 28 U.S.C. § 1983. Ramirez, 334 F.3d at 859. As a result, Petitioner

should be granted leave to amend his complaint to reflect an intent to proceed with a civil rights action pursuant to § 1983. See Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987). Based on the foregoing, Respondent's Motion to Dismiss (ECF No. 17) is hereby GRANTED and the Court declines to follow the Magistrate Judge's Findings and Recommendations (ECF No. 23). Petitioner may file an amended complaint seeking redress, pursuant to 28 U.S.C. § 1983, within twenty (20) days of the electronic filing of this order. 3

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If no amended complaint is filed within said twenty (20)-day period, without further notice, Petitioner's complaint will be dismissed without leave to amend. IT IS SO ORDERED. Dated: April 6, 2011

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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