Johnson v. Sacramento County et al

Filing 11

ORDER signed by Magistrate Judge Craig M. Kellison on 2/3/2015 DISMISSING this action, without prejudice, for failure to state a claim; plaintiff's 8 motion to transfer is DENIED as moot; and the Clerk shall enter judgment and close this file. CASE CLOSED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEITH D. JOHNSON,

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Plaintiff,

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No. 2:14-CV-0345-CMK-P

vs.

ORDER

SACRAMENTO COUNTY, et al.,

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Defendants.

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/

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C.

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§ 636(c) and no other party has been served or appeared in the action.

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On October 30, 2014, the court directed plaintiff to show cause in writing why
this action should not be dismissed for failure to state a claim. The court stated:

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Plaintiff names Sacramento County and attorney Cynthia A.
Thomas as defendants to this action. It appears that plaintiff is challenging
the validity of his underlying conviction by way of arguing that
Sacramento County interfered with his access to counsel for his direct
criminal appeal. He also appears to allege ineffective assistance of
counsel on the part of Ms. Thomas.

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When a state prisoner challenges the legality of his custody
and the relief he seeks is a determination that he is entitled to an earlier or
immediate release, such a challenge is not cognizable under 42 U.S.C. §
1983 and the prisoner’s sole federal remedy is a petition for a writ of
habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see
also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City
of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). In this case,
plaintiff does not challenge the conditions of his confinement, which is a
claim cognizable under § 1983. Rather, he presents arguments which
relate to the fact or duration of his confinement. As such, his claims are
not cognizable under § 1983 and the action should be dismissed.

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Plaintiff has not responded to the court’s order to show cause, but has instead filed

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a document in which he asks the court for an “extension of time to rule on this civil matter.”

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Plaintiff has not stated any reasons justifying an extension of time to respond to the court’s order

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to show cause and, therefore, fails to show good cause. Nor has plaintiff shown cause why this

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action should not be dismissed for failure to state a claim.

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Accordingly, IT IS HEREBY ORDERED that:

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This action is dismissed, without prejudice, for failure to state a claim

upon which relief under 42 U.S.C. § 1983 can be granted;

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2.

Plaintiff’s motion to transfer (Doc. 8) is denied as moot; and

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3.

The Clerk of the Court is directed to enter judgment and close this file.

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DATED: February 3, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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