Patterson v. Harris

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 4/28/2017 RECOMMENDING that 7 Amended Prisoner Civil Rights Complaint be dismissed. Referred to Judge Morrison C. England, Jr. Objections to F&R due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VESTER L. PATTERSON,

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Plaintiff,

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v.

No. 2:16-cv-1994 MCE AC

FINDINGS AND RECOMMENDATIONS

KAMALA HARRIS,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed a purported civil rights action

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pursuant to 42 U.S.C. § 1983 (ECF No. 7), together with a request to proceed in forma pauperis

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(ECF No. 2). Plaintiff has also filed a “Notice of Constitutional Question and Challenge Pursuant

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to F.R.C.P. 5.1 and Request for Court Certification Pursuant to 28 U.S.C. § 2403” (ECF No. 6), a

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Motion for Summary Judgment (ECF No. 8), and an “Ex Parte Motion to Expedite the

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Proceedings” (ECF No. 10).

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Based on the filings submitted, it appears that plaintiff is seeking to challenge the

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constitutionality of his sentence and release date rather than the conditions of his confinement.

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ECF Nos. 6, 7, 8, 10. Because plaintiff’s claims challenge his current custody and release date,

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they cannot be raised by way of a § 1983 complaint. If plaintiff is trying to bring claims

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challenging his conviction or sentence, he must file a habeas corpus petition pursuant to 28

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U.S.C. § 2254. Plaintiff is advised that, pursuant to 28 U.S.C. § 2241(d), venue for a habeas
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action challenging the validity of the conviction and/or sentence is proper in the district of

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conviction. Plaintiff is further advised that he is subject to a vexatious litigant order in the United

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States District Court for the Central District of California. See Patterson v. Ratelle, No. 99-cv-

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0369-AAH (RMC) (C.D. Cal. April 29, 1999) (order adopting report and recommendation).

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Thus, the Clerk of Court for the United States District Court for the Central District of California

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will not accept habeas corpus petitions from plaintiff without payment of a filing fee and without

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written authorization from a District Judge or a Magistrate Judge issued upon a showing of

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evidence supporting the claim.

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Accordingly, plaintiff’s purported § 1983 amended complaint must be dismissed, without

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prejudice. Although the court would generally grant plaintiff leave to amend in light of his pro se

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status, amendment is futile in this instance because the deficiencies cannot be cured by

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amendment. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000); Schmier v. United States

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Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[f]utility

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of amendment” as a proper basis for dismissal without leave to amend); see also Trimble v. City

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of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (a civil rights complaint seeking habeas relief

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should be dismissed without prejudice to filing as a petition for writ of habeas corpus).

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1. The amended complaint (ECF No. 7) be dismissed for failure to state a cognizable

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claim for relief; and

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2. The Clerk of Court be directed to terminate this action.

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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, plaintiff may file written objections

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

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to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 28, 2017

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