Gonzalez v. Unknown

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 08/15/11 ORDERING the Clerk to assign a district judge to this case; this case is REASSIGNED to District Judge Kimberly J. Mueller and Magistrate Judge Kendall J. Newman for all further proceedings. The new case number is 11-cv-2122 KJM KJN P; and RECOMMENDING that this action be dismissed. Objections to these F&Rs due w/i 14 days; referred to Judge Kimberly J. Mueller. (Benson, A.)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

FRANCISCO GONZALEZ,

11
12
13

Plaintiff,

No. 2:11-cv-2122 KJN P

vs.
UNKNOWN,

14

ORDER AND
Defendant.

15

FINDINGS & RECOMMENDATIONS
/

16

Plaintiff is a state prisoner proceeding without counsel. On August 10, 2011,

17

plaintiff filed the instant civil rights complaint along with a petition for writ of habeas corpus

18

filed in 2:11-cv-2121 GGH P.1 Plaintiff brought the instant action under 42 U.S.C. § 1983, but is

19

challenging his detention, which is more appropriately the subject of plaintiff’s habeas action,

20

Case No. 2:11-cv-2121 GGH, which is presently pending. Therefore, plaintiff’s complaint

21

should be dismissed without prejudice.

22

The Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at

23
24
25
1

26

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
1

1

law, suit in equity, or other proper proceeding for redress.

2

42 U.S.C. § 1983. Section 1983 is the appropriate avenue to remedy an alleged wrong only if

3

both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985),

4

cert. denied, 478 U.S. 1020 (1986).

5

However, when a state prisoner challenges the fact or duration of his custody and

6

the relief he seeks is the determination of his entitlement to release, his sole federal remedy is a

7

writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (a petition for writ of

8

habeas corpus is the only proper mechanism to challenge the legality or duration of confinement).

9

In the instant complaint, plaintiff challenges the hold that the United States

10

Immigration and Customs Enforcement placed on plaintiff which will result in plaintiff’s

11

deportation to Mexico once plaintiff completes the sixteen month sentence imposed for his

12

conviction for driving under the influence.2 For relief, plaintiff asks the court to “help [him] out

13

in [his] I.N.S. hold.” (Dkt. No. 1 at 3.) However, the relief plaintiff seeks is more appropriately

14

sought by way of petition for writ of habeas corpus. Indeed, plaintiff is pursuing this claim in a

15

petition for writ of habeas corpus filed in Case No. 2:11-cv-2121 GGH, and his challenge to the

16

deportation hold will be addressed therein. Therefore, this action should be dismissed without

17

prejudice.

18
19

In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the
Court is directed to assign a district judge to this case; and

20
21

IT IS RECOMMENDED that this action be dismissed without prejudice. See
Fed. R. Civ. P. 41(b).

22

These findings and recommendations are submitted to the District Judge assigned

23

to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being

24

served with these findings and recommendations, plaintiff may file written objections with the

25
2

26

This information was obtained from plaintiff’s habeas petition filed in 2:11-cv-2121
GGH. (Dkt. No. 1 at 2.)
2

1

court. The document should be captioned “Objections to Magistrate Judge’s Findings and

2

Recommendations.” Any response to the objections shall be filed and served within fourteen

3

days after service of the objections. Plaintiff is advised that failure to file objections within the

4

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

5

F.2d 1153 (9th Cir. 1991).

6

DATED: August 15, 2011

7
8

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

9
10

gonz2122.23

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3