Pierce v. Harris

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/9/2016 RECOMMENDING the 1 petition be summarily dismissed pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254. Referred to Judge Troy L. Nunley; Objections to F&R 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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SEAVON PIERCE,

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Petitioner,

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No. 2:16-cv-1790 TLN CKD P

v.

FINDINGS AND RECOMMENDATIONS

KAMALA D. HARRIS, et al.,

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Respondents.

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Petitioner is a state prisoner proceeding pro se with this action pursuant to 28 U.S.C. §

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2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).
Petitioner, a “Three Strikes” inmate under 28 U.S.C. § 1915(g)1, has styled his complaint

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as a petition for writ of habeas corpus. However, the petition alleges staff misconduct and does

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not concern petitioner’s conviction or sentence. (ECF No. 1 at 1-2.) In an attached letter,

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petitioner appears to allege excessive force on November 13, 2013, resulting in “a broken nose

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and multiple injuries to the head and face.” (Id. at 8-9.)

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See Pierce v. Sacramento Bee, No. 2:16-cv-0260 JAM CKD P, Order dated Feb. 29, 2016
(denying plaintiff’s request to proceed in forma pauperis, affirmed on reconsideration by district
court on March 30, 2016).
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A habeas corpus petition is the correct method for a prisoner to challenge the legality or

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duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir.1991) (quoting Preiser v.

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Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976

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Adoption. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for

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a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136,

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(1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Habeas

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Rule 1, 1976 Adoption. Here, as petitioner’s claims do not relate to the duration of his

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confinement, they are not properly brought within this federal habeas action.

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Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for

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

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

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foregoing reasons, and because it does not appear that the petition can be cured by amendment,

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the petition should be summarily dismissed pursuant to Rule 4.2

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Accordingly, IT IS HEREBY RECOMMENDED that the petition be summarily

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dismissed pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254.

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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, petitioner may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” In his objections petitioner may address whether a

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certificate of appealability should issue in the event he files an appeal of the judgment in this

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Petitioner may re-file any claims concerning prison conditions in an action pursuant to section
1983. Petitioner is advised that the statutory filing fee for such an action is $400.00. 28 U.S.C.
§§ 1914(a), 1915(b)(1).
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case. Petitioner is advised that failure to file objections within the specified time may waive the

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

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Dated: September 9, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / pier1790.R4_fr

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