Dahl v. Virga et al

Filing 12

ORDER signed by Magistrate Judge Craig M. Kellison on 2/24/2014 ORDERING petitioner to SHOW CAUSE in writing, within 30 days, why this petition for a writ of habeas corpus should not be summarily dismissed. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ROBERT EDWARD DAHL, JR.,

12

Petitioner,

13
14

No. 2:13-CV-2313-CMK-P

vs.

ORDER

TIMOTHY VIRGA, et al.,

15

Respondents.

16

/

17

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

18

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

19

a writ of habeas corpus (Doc. 1).

20

Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary

21

dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any

22

exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the

23

instant case, it is plain that petitioner is not entitled to federal habeas relief. Specifically,

24

because petitioner seeks a court order enjoining any prison transfers the petition challenges the

25

conditions of confinement and not the fact or duration of his custody.

26

///
1

1

When a state prisoner challenges the legality of his custody – either the fact of

2

confinement or the duration of confinement – and the relief he seeks is a determination that he is

3

entitled to an earlier or immediate release, such a challenge is cognizable in a petition for a writ

4

of habeas corpus under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973);

5

see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49

6

F.3d 583, 586 (9th Cir. 1995) (per curiam). Where a prisoner challenges the conditions of

7

confinement, as opposed to the fact or duration of confinement, his remedy lies in a civil rights

8

action under 42 U.S.C. § 1983. See Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985).

9

Thus, 28 U.S.C. § 2254 cannot be used to challenge the conditions of confinement, and 42

10
11

U.S.C. § 1983 cannot be used to challenge the fact or duration of confinement.
Based on the foregoing, petitioner is required to show cause in writing, within 30

12

days of the date of this order, why his petition for a writ of habeas corpus should not be

13

summarily dismissed. Petitioner is warned that failure to respond to this order may result in

14

dismissal of the petition the reasons outlined above, as well as for failure to prosecute and

15

comply with court rules and orders. See Local Rule 110.

16

IT IS SO ORDERED.

17
18
19
20

DATED: February 24, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
2