Gibbs v. Bosenko

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 6/8/2018 RECOMMENDING petitioner's 1 petition for writ of habeas corpus be summarily dismissed and that all pending motions be denied as moot. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT A. GIBBS,

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No. 2:18-CV-0859-MCE-CMK-P

Petitioner,

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vs.

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TOM BOSENKO,

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FINDINGS AND RECOMMENDATIONS

Respondent.

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/

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Petitioner, a prisoner proceeding pro se, brings this petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s petition for a writ

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of habeas corpus (Doc. 1).

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Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary

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

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

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instant case, it is plain that petitioner is not entitled to federal habeas relief.

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When a state prisoner challenges the legality of his custody – either the fact of

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confinement or the duration of confinement – and the relief he seeks is a determination that he is

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entitled to an earlier or immediate release, such a challenge is cognizable in a petition for a writ

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of habeas corpus under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973);

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see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49

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F.3d 583, 586 (9th Cir. 1995) (per curiam). Where a prisoner challenges the conditions of

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confinement, as opposed to the fact or duration of confinement, his remedy lies in a civil rights

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action under 42 U.S.C. § 1983. See Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985); see

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also Skinner v. Switzer, 131 S.Ct. 1289, 1298-99 n.13 (2011) (stating that “. . .when a prisoner’s

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claim would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of habeas

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corpus’ and may be brought, if at all, under § 1983"). Any claim that does not necessarily

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shorten an inmate’s incarceration, if successful, falls outside the scope of habeas jurisdiction.

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See Blair v. Martel, 645 F.3d 1151, 1157-58 (9th Cir. 2011); see also Wilkerson v. Wheeler, ___

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F.3d ___, 2014 WL 6435496 (9th Cir. 2014) (discussing loss of good-time credits); Nettles v.

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Grounds, 788 F.3d 992 (9th Cir. 2015) (discussing loss of good-time credits). Thus, 28 U.S.C.

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§ 2254 cannot be used to challenge the conditions of confinement, and 42 U.S.C. § 1983 cannot

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be used to challenge the fact or duration of confinement.

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In this case, petitioner claims that he is being denied access to the courts. Because

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success on petitioner’s claim would not necessarily shorten his term of incarceration, it falls

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outside the scope of habeas jurisdiction.

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When a habeas corpus action is filed which states claims cognizable under § 1983,

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the district court may recharacterize the action as a civil rights action where the action is

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amenable to such recharacterization. See Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016)

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(en banc). A habeas action is amendable to recharacterization when it names the correct

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defendants and seeks the correct relief. See id. If the district court is inclined to recharacterize a

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habeas action as a civil rights action, it may only do so after “notifying and obtaining informed
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consent from the prisoner.” Id.

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The court does not recommend recharacterizing petitioner’s habeas action as a

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civil rights action. Specifically, petitioner does not name the correct defendant to a civil rights

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action because, while he has named the supervisory official who has custody over him, he has not

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named the individual(s) alleged to be personally responsible for denial of access to the courts.

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Based on the foregoing, the undersigned recommends that petitioner’s petition for

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a writ of habeas corpus (Doc. 1) be summarily dismissed and that all pending motions be denied

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as moot.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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

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DATED: June 18, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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