Downs v. Beard

Filing 10

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/11/2015 GRANTING petitioner's 3 application to proceed IFP and the Clerk shall randomly assign this action to a US District Judge; AND RECOMMENDING that this action be dismissed without prejudice to filing a civil rights action pursuant to 42 U.S.C. § 1983. Assigned and referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY DOWNS,

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No. 2:14-cv-3011-EFB P

Petitioner,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

JEFFREY BEARD,

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Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. The court has reviewed the petition as required by Rule 4 of the Rules

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Governing Section 2254 Proceedings, and finds that it must be summarily dismissed. See Rule 4,

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Rules Governing § 2254 Cases (requiring summary dismissal of habeas petition if, upon initial

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review by a judge, it plainly appears “that the petitioner is not entitled to relief in the district

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court”).

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Federal courts offer two main avenues to relief on complaints related to one’s

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imprisonment – a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and a civil rights

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complaint pursuant to 42 U.S.C. § 1983. Challenges to the validity of one’s confinement or the

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duration of one’s confinement are properly brought in a habeas action, whereas requests for relief

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turning on the circumstances of one’s confinement are properly brought in a § 1983 action.

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Muhammad v. Close, 540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500

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(1973)); see also 28 U.S.C. § 2254(a) (“[A] district court shall entertain an application for a writ

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of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only

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on the ground that he is in custody in violation of the Constitution or laws or treaties of the United

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States.”); Advisory Committee Notes to Rule 1 of the Rules Governing § 2254 Cases.

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Petitioner indicates that his petition concerns an upcoming parole suitability hearing and

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his rights under the Americans with Disabilities Act and the Rehabilitation Act. ECF No. 1 at 1.

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He requests the following: 1) counsel for his April 2015 parole suitability hearing; 2) copies of

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his mental health records; 3) the opportunity to depose the Board of Parole Terms; 4) unspecified

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discovery; and 5) an injunction against the Sacramento County Superior Court. See generally id.

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Here, petitioner’s claims do not sound in habeas because they do not concern the validity or

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duration of his confinement.
Accordingly, IT IS HEREBY ORDERED that petitioner’s application to proceed in forma

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pauperis (ECF No. 3) is granted and the Clerk of the Court shall randomly assign this action to a

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United States District Judge.

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Further, it is HEREBY RECOMMENDED that this action be dismissed without prejudice
to filing a civil rights action pursuant to 42 U.S.C. § 1983.

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These findings and recommendations are submitted to the United States District Judge

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

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

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

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In

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his objections petitioner may address whether a certificate of appealability should issue in the

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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

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enters a final order adverse to the applicant).

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Dated: March 11, 2015.

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