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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GREGORY DOWNS, 11 12 13 No. 2:14-cv-3011-EFB P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS JEFFREY BEARD, 14 Respondent. 15 16 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 17 28 U.S.C. § 2254. The court has reviewed the petition as required by Rule 4 of the Rules 18 Governing Section 2254 Proceedings, and finds that it must be summarily dismissed. See Rule 4, 19 Rules Governing § 2254 Cases (requiring summary dismissal of habeas petition if, upon initial 20 review by a judge, it plainly appears “that the petitioner is not entitled to relief in the district 21 court”). 22 Federal courts offer two main avenues to relief on complaints related to one’s 23 imprisonment – a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and a civil rights 24 complaint pursuant to 42 U.S.C. § 1983. Challenges to the validity of one’s confinement or the 25 duration of one’s confinement are properly brought in a habeas action, whereas requests for relief 26 turning on the circumstances of one’s confinement are properly brought in a § 1983 action. 27 Muhammad v. Close, 540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 28 (1973)); see also 28 U.S.C. § 2254(a) (“[A] district court shall entertain an application for a writ 1 of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only 2 on the ground that he is in custody in violation of the Constitution or laws or treaties of the United 3 States.”); Advisory Committee Notes to Rule 1 of the Rules Governing § 2254 Cases. 4 Petitioner indicates that his petition concerns an upcoming parole suitability hearing and 5 his rights under the Americans with Disabilities Act and the Rehabilitation Act. ECF No. 1 at 1. 6 He requests the following: 1) counsel for his April 2015 parole suitability hearing; 2) copies of 7 his mental health records; 3) the opportunity to depose the Board of Parole Terms; 4) unspecified 8 discovery; and 5) an injunction against the Sacramento County Superior Court. See generally id. 9 Here, petitioner’s claims do not sound in habeas because they do not concern the validity or 10 11 duration of his confinement. Accordingly, IT IS HEREBY ORDERED that petitioner’s application to proceed in forma 12 pauperis (ECF No. 3) is granted and the Clerk of the Court shall randomly assign this action to a 13 United States District Judge. 14 15 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. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 21 within the specified time may waive the right to appeal the District Court’s order. Turner v. 22 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 23 his objections petitioner may address whether a certificate of appealability should issue in the 24 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 25 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 26 enters a final order adverse to the applicant). 27 Dated: March 11, 2015. 28 2

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