Rivera v. San Diego Sheriffs Dept.

Filing 2

ORDER dismissing case without prejudice. Petitioner is advised that to the extent he seeks to challenge the conditions of his confinement, he must pursue those claims via a 42 USC 1983 action. Signed by Judge John A. Houston on 9/25/2017.(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CESAR RIVERA,

Case No.: 17cv1849 JAH (MDD)
Petitioner,

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v.

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ORDER DISMISSING CASE
WITHOUT PREJUDICE

SAN DIEGO SHERIFF DEPT.,
Respondent.

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On September 5, 2017, Petitioner, a state prisoner proceeding pro se, paid the

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$5.00 filing fee and submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

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§ 2254.

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FAILURE TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS

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Upon review of the Petition, it appears to the Court that a Petition for Writ of

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Habeas Corpus brought pursuant to § 2254 is not the proper vehicle for the claims

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Petitioner presents. Petitioner lists various problems he claims he is facing in prison.

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Specifically, Petitioner claims he was subjected to cruel and unusual punishment while in

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prison because he did not receive showers for an extended period of time. (Pet., ECF No.

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1 at 6-8.) Petitioner’s claims are not cognizable on habeas because it does/they do not

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challenge the constitutional validity or duration of confinement. See 28 U.S.C. 2254(a);

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17cv1849 JAH (MDD)

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Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 512 U.S. 477, 480-

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85 (1994).

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Challenges to the fact or duration of confinement are brought by petition for a writ

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of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement

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are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser, 411 U.S. at

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488-500; Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (“a § 1983 action is the

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exclusive vehicle for claims brought by state prisoners that are not within the core of

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habeas corpus”). When a state prisoner is challenging the very fact or duration of his

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physical imprisonment, and the relief he seeks is a determination that he is entitled to

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immediate release or a speedier release from that imprisonment, his sole federal remedy

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is a writ of habeas corpus. Preiser, 411 U.S. at 500; Nettles, 830 F.3d at 927. On the

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other hand, a § 1983 action is a proper remedy for a state prisoner who is making a

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constitutional challenge to the conditions of his prison life, but not to the fact or length of

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his custody. Preiser, 411 U.S. at 499; Nettles, 830 F.3d at 927. It appears that Petitioner

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challenges the conditions of his prison life, but not the fact or length of his custody.

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Thus, Petitioner has not stated a cognizable habeas claim pursuant to § 2254.

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

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

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annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, 28

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U.S.C. foll. § 2254. Here, it is plain from the petition that Petitioner is not presently

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entitled to federal habeas relief because he has not alleged that the state court violated his

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federal rights.

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IN CUSTODY REQUIREMENT
Further, it appears that Petitioner is not in the custody of the State of California,

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nor was he when he filed the Petition because it lists Petitioner’s place of confinement as

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his address as “10730 Church St. Apt. #323, Rancho Cucamonga, CA 91730,” and state

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he was released from custody on April 17, 2017. (Pet., ECF No. 1 at 1-2.) Furthermore,

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Petitioner does not allege he is on parole or otherwise in constructive custody.
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17cv1849 JAH (MDD)

“Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C.

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§ 2254(a), is limited to those persons ‘in custody pursuant to the judgment of a State.’”

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Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994); see also 28 U.S.C. § 2241(c)(3). It is

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a jurisdictional requirement that, at the time a habeas petition is filed, “the habeas

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petitioner be ‘in custody’ under the conviction or sentence under attack.” Maleng v.

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Cook, 490 U.S. 488, 490-91 (1989) (citing 28 U.S.C. §§ 2241(c)(3) & 2254(a)); see

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Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).

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CONCLUSION

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For the foregoing reasons, the Court DISMISSES this case without prejudice.

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Petitioner is advised that to the extent he seeks to challenge the conditions of his

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confinement, he must pursue those claims via a 42 U.S.C. § 1983 action.1

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IT IS SO ORDERED.

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DATED: September 25, 2017

_________________________________________

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John A. Houston

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United States District Judge

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Petitioner has three closed civil rights cases in this Court: 16cv2979 LAB (JLB), 16cv3008 CAB
(BLM) and 17cv1848 LAB (AGS).
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17cv1849 JAH (MDD)