Sermeno v. Kernan et al
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/1/2017 ORDERING Clerk to randomly assign a District Judge and RECOMMENDING that 1 Petition for Writ of Habeas Corpus be dismissed for lack of jurisdiction. Assigned and referred to Judge Garland E. Burrell, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:17-cv-1418 AC P
ORDER AND FINDINGS AND
SCOTT KERNAN, et al.,
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his application, petitioner alleges violations of the
Americans with Disabilities Act and his First Amendment right to access the courts; he appears to
allege that these violations interfered with his ability to properly pursue his petition in Sermeno v.
Spearman, No. 2:14-cv-2729 DB P (E.D. Cal.). ECF No. 1. He requests that the court vacate an
order, enter an order allowing him thirty days to amend, grant a motion, and order “review and
decision” within fifteen business days of the order. Id. at 7, 21. It appears he may also be
seeking compensatory damages. Id. at 6.
Rule 4 of the Rules Governing Section 2254 Cases requires the court to summarily
dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court.” A habeas corpus petition is the correct
method for a prisoner to challenge the “legality or duration” of his confinement. Badea v. Cox,
931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); 28
U.S.C. § 2254. “[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful
challenge to a prison condition will not necessarily shorten the prisoner’s sentence.” Ramirez v.
Galaza, 334 F.3d 850, 859 (9th Cir. 2003).
It is clear from the allegations and the requested relief that success on the merits of the
petition will not necessarily spell speedier release for petitioner. The court therefore lacks
jurisdiction and the petition should be dismissed. To the extent petitioner appears to be seeking
some kind of action in Sermeno v. Spearman, No. 2:14-cv-2729 DB P (E.D. Cal.), that case is
still pending and he must pursue relief by filing a motion for the relief he seeks in that case. To
the extent petitioner is attempting to challenge his conditions of confinement, he must bring those
claims in a civil rights action after the inmate grievance process has been properly exhausted.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a
United States District Judge to this action.
IT IS FURTHER RECOMMENDED that the petition for writ of habeas corpus be
dismissed for lack of jurisdiction.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, petitioner may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that
failure to file objections within the specified time may waive the right to appeal the District
Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED: August 1, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?