Turner v. Cates

Filing 13

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 8/30/12 ORDERING that a district judge be assigned to this case; RECOMMENDING that plaintiffs motion for temporary restraining order 5 be denied; and petitioners motion for preliminary injunction 6 be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

ANTHONY R. TURNER,
Petitioner,

11
12
13
14
15
16

No. 2:12-cv-0609 JFM (HC)

vs.
MATTHEW CATES,

ORDER AND

Respondent.

FINDINGS & RECOMMENDATIONS
/

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of

17

habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner’s motion for

18

preliminary injunction and motion for temporary restraining order. The court has reviewed both

19

motions and finds them to be largely unintelligible. To the extent the motions can be construed

20

as requests for an order directing certain individuals to refrain from harming petitioner, petitioner

21

is informed that in this action brought pursuant to 28 U.S.C. § 2254, this court’s jurisdiction is

22

limited to the fact or duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir.

23

1991). In contrast, claims concerning the conditions of petitioner’s confinement are properly

24

raised in a civil rights complaint. See Bivens v. Six Unknown Named Agents of Federal Bureau

25

of Narcotics, 403 U.S. 388 (1971); Nelson v. Campbell, 541 U.S. 637, 643 (2004)

26

(“[C]onstitutional claims that ... challenge the conditions of a prisoner’s confinement, whether
1

1

the inmate seeks monetary or injunctive relief, fall outside of the [habeas] core and may be

2

brought pursuant to a [42 U.S.C.] § 1983 [action] in the first instance.”); Badea, 931 F.2d at 574

3

(9th Cir. 1991) (challenges to conditions of confinement by state prisoners should be presented

4

in a 42 U.S.C. § 1983 civil rights action rather than a habeas corpus petition).
Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this

5
6

case; and

7

IT IS HEREBY RECOMMENDED that:

8

1. Plaintiff’s motion for temporary restraining order (Doc. No. 5) be denied; and

9

2. Petitioner’s motion for preliminary injunction (Doc. No. 6) be denied.
These findings and recommendations are submitted to the United States District

10
11

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

12

days after being served with these findings and recommendations, any party may file written

13

objections with the court and serve a copy on all parties. Such a document should be captioned

14

“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised

15

that failure to file objections within the specified time may waive the right to appeal the District

16

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

17

DATED: August 30, 2012.

18
19
20
21

/014;turn0609.jo

22
23
24
25
26
2