Davis v. Thompson et al

Filing 14

ORDER signed by Magistrate Judge Dale A. Drozd on 03/01/12 ordering petitioner's motion to proceed in forma pauperis 7 is granted. Petitioner's application for writ of habeas corpus 1 is dismissed without prejudice to filing a civil rights action. Petitioner's motions 8 , 12 , 13 are denied as moot. A certificate of appealability is not issued in this action. This action is closed. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CONNOR A. DAVIS,

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Petitioner,

No. CIV S-11-3238 DAD P

vs.
THOMPSON et al.,
Respondents.

ORDER

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Petitioner, a county jail inmate proceeding pro se, has filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma

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pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to

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afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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PRELIMINARY SCREENING
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to

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dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to

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it that the petitioner is not entitled to relief in the district court. . . .” Rule 4, Rules Governing

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Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may

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dismiss a petition for writ of habeas corpus at several stages of a case, including “summary
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dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the

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answer and petition are considered; or a dismissal after consideration of the pleadings and an

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expanded record.”

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BACKGROUND

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On December 6, 2011, petitioner commenced this action by filing a petition for

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writ of habeas corpus with this court. Therein, he alleges that the Colusa County Sheriff’s

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Department and the Colusa County court system, including its judges, the district attorney, and

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his public defender, have all failed to provide him with adequate mental health care. In this

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regard, petitioner contends that he needs to be transferred to a treatment facility where he can

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receive appropriate care. Petitioner also contends that he is not receiving adequate food and

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heating at the Colusa County Jail where he is currently confined. (Pet. at 3-4.)

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ANALYSIS

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The instant petition will be dismissed because petitioner has failed to state a

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cognizable claim for federal habeas relief. Petitioner is advised that habeas corpus proceedings

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

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confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, petitioner does not

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challenge the legality of his conviction, a parole proceeding, or other adjudication that has led to

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his current incarceration. Rather, petitioner challenges the conditions of his confinement.

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Petitioner is advised that a civil rights action, not a habeas corpus proceeding, 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). Accordingly, petitioner is not entitled

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to habeas corpus relief, and this habeas action will be dismissed without prejudice to filing a civil

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rights action.1

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Petitioner previously consented to Magistrate Judge jurisdiction over this action
pursuant to 28 U.S.C. § 636(c). (See Doc. No. 3.)
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OTHER MATTERS

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Also pending before the court are several motions from petitioner, including a

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motion for appointment of counsel. In light of the conclusion reached above that this habeas

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action must be dismissed, the court will deny petitioner’s motions as moot.

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Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the

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district court must issue or deny a certificate of appealability when it enters a final order adverse

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to the applicant.” A certificate of appealability should be granted for any issue that petitioner can

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demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different

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court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford,

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290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). For

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the reasons set forth above, the court declines to issue a certificate of appealability in this action.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to proceed in forma pauperis (Doc. No. 7) is granted;

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2. Petitioner’s application for writ of habeas corpus (Doc. No. 1) is dismissed

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without prejudice to filing a civil rights action;

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3. Petitioner’s motions (Doc. Nos. 8, 12 & 13) are denied as moot;

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4. A certificate of appealabilty is not issued in this action; and

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5. This action is closed.

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DATED: March 1, 2012.

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DAD:9
davi3238.156

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