-SKO (HC) Jones v. Tate, No. 1:2010cv00068 - Document 33 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 22 Petitioner's Motion for an Order to Return His Legal Property be DENIED re 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Sheila K. Oberto on 7/6/2011. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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-SKO (HC) Jones v. Tate Doc. 33 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FREDRICK JONES JR., 10 Petitioner, 11 12 13 v. DIRECTOR OF CORRECTIONS MATTHEW TATE, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00068-AWI-SKO-HC FINDINGS AND RECOMMENDATION TO DENY PETITIONER’S REQUEST FOR AN ORDER TO PRISON STAFF TO RETURN HIS PROPERTY (Doc. 22) 16 17 Petitioner is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 The matter has been referred to the Magistrate Judge pursuant to 20 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. 21 the Court is Petitioner’s motion for return of legal property, 22 which was filed on November 29, 2010.1 Pending before 23 I. 24 Petitioner previously filed a request for an injunction Motion for Injunctive Relief 25 against prison staff in connection with access to Petitioner’s 26 legal property (doc. 20). The previous request was denied 27 1 28 Petitioner’s motion includes a request for the appointment of counsel, which was ruled on by a separate order on March 2, 2011. 1 Dockets.Justia.com 1 because it constituted a claim concerning the conditions of 2 Petitioner’s confinement, as distinct from a claim concerning the 3 legality or duration of that confinement, which would be 4 cognizable in a proceeding pursuant to 28 U.S.C. § 2254. (Docs. 5 21, 25.) 6 In his motion, Petitioner states that he remains in 7 administrative segregation at High Desert State Prison as a 8 result of a fight in September, and has been separated from his 9 legal property to which he would like to have access to prepare a 10 response to Respondent’s motion to dismiss filed on October 15, 11 2010. 12 court order to prison officials to give Petitioner access to his 13 property. Petitioner thus seeks injunctive relief in the form of a 14 After reading the request in its entirety, the Court 15 concludes that Petitioner is challenging the conditions of his 16 confinement, and not the fact or duration of that confinement. 17 Relief by way of a writ of habeas corpus pursuant to 28 18 U.S.C. § 2254 extends to a prisoner who shows that the custody 19 violates the Constitution, laws, or treaties of the United 20 States. 21 correct method for a prisoner to challenge the legality or 22 duration of his confinement. 23 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 24 (1973)); Advisory Committee Note to Rule 1 of the Rules Governing 25 Section 2254 Cases (Habeas Rules), 1976 Adoption. 26 28 U.S.C. § 2241(c)(3). A habeas corpus petition is the Badea v. Cox, 931 F.2d 573, 574 In contrast, a civil rights action pursuant to 42 U.S.C. 27 § 1983 is the proper method for a prisoner to challenge the 28 conditions of that confinement. McCarthy v. Bronson, 500 U.S. 2 1 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 2 574; Advisory Committee Note to Habeas Rule 1, 1976 adoption. 3 Because Petitioner challenges the conditions of his 4 confinement, and not the legality or duration of his confinement, 5 these particular claims are cognizable in a civil rights action 6 rather than a petition for writ of habeas corpus. 7 Petitioner’s present application essentially duplicates his 8 previous application for injunctive relief because it seeks to 9 have this Court order the litigation/appeals coordinator give 10 11 Further, Petitioner access to his legal property. Finally, the Court notes that Petitioner filed opposition to 12 the motion to dismiss on December 6, 2010, and January 19, 2011. 13 Thus, to the extent that Petitioner’s request for injunctive 14 relief was based on a need to respond to the motion to dismiss, 15 Petitioner’s motion for injunctive relief is moot. 16 17 Accordingly, it will be recommended that the request for injunctive relief be denied. 18 II. 19 In accordance with the foregoing, it is RECOMMENDED that Recommendation 20 Petitioner’s motion for an order to return his legal property be 21 DENIED. 22 These findings and recommendations are submitted to the 23 United States District Court Judge assigned to the case, pursuant 24 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 25 the Local Rules of Practice for the United States District Court, 26 Eastern District of California. 27 being served with a copy, any party may file written objections 28 with the Court and serve a copy on all parties. Such a document Within thirty (30) days after 3 1 should be captioned “Objections to Magistrate Judge’s Findings 2 and Recommendations.” 3 and filed within fourteen (14) days (plus three (3) days if 4 served by mail) after service of the objections. 5 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 6 636 (b)(1)(C). 7 objections within the specified time may waive the right to 8 appeal the District Court’s order. 9 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 10 11 IT IS SO ORDERED. 12 Dated: ie14hj July 6, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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