Garcia v. Fresno Correctional Dept.
Filing
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ORDER Dismissing Petition for Writ of Habeas Corpus; ORDER Directing the Clerk of Court to Enter Judgment and Close the Case; ORDER Declining to Issue a Certificate of Appealability; ORDER Directing the Clerk to Mail a Civil Rights Form to Petitioner, signed by Magistrate Judge Sandra M. Snyder on 5/4/2010. CASE CLOSED.(Verduzco, M)
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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 v. 13 14 15 16 17 On March 24, 2010, Petitioner filed a petition for writ of 18 habeas corpus in this Court. He is currently incarcerated at the 19 Fresno County Jail for a probation violation. (Pet. p. 2.) On 20 April 1, 2010, Petitioner filed a signed, written form indicating 21 his consent to have a United States Magistrate Judge conduct all 22 further proceedings in this case. 23 I. Screening the Petition 24 Rule 4 of the Rules Governing § 2254 Cases in the United 25 States District Courts (Habeas Rules) requires the Court to make 26 a preliminary review of each petition for writ of habeas corpus. 27 The Court must summarily dismiss a petition "[i]f it plainly 28 1 FRESNO CORRECTIONAL DEPARTMENT, Respondent. STEPHEN GARCIA, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv--00522-SMS-HC ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING THE CLERK TO ENTER JUDGMENT AND CLOSE THE CASE ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY ORDER DIRECTING THE CLERK TO MAIL A CIVIL RIGHTS FORM TO PETITIONER
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appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Adv. Comm. Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). II. Conditions of Confinement A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). 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)); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases, 1976 Adoption. In contrast, a civil rights action pursuant to 42 U.S.C. § 2
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1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases, 1976 Adoption. In this case, Petitioner alleges that staff at the jail were negligent with respect to medical and disciplinary matters by not disciplining other inmates who assaulted Petitioner while he was in custody; denied Petitioner medical care for a month for a broken jaw; and provided inadequate medical treatment. Petitioner is not challenging a conviction or sentence; rather, he is challenging the conditions of his confinement. Thus, Petitioner is not entitled to habeas corpus relief, and this petition must be dismissed. Should Petitioner wish to pursue his claims, he must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. The Clerk will be directed to send an appropriate form complaint to Petitioner. III. Certificate of Appealability Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether 3
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the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id. It is necessary for an applicant to show more than an absence of frivolity or the existence of mere good faith; however, it is not necessary for an applicant to show that the appeal will succeed. Id. at 338. A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. Here, because Petitioner's claims relate only to conditions of confinement, jurists of reason would not find it debatable whether the Court was correct in its ruling. Accordingly, Petitioner has not made a substantial showing of the denial of a constitutional right, and the Court declines to issue a certificate of appealability. IV. Disposition Accordingly, IT IS HEREBY ORDERED that: 4
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1) The petition for writ of habeas corpus IS DISMISSED without prejudice to Petitioner's right to file a civil rights action pursuant to 28 U.S.C. § 1983; and 2) The Clerk of Court is DIRECTED to enter judgment and close the case; and 3) The Court DECLINES TO ISSUE a certificate of appealability; and 4) The Clerk IS DIRECTED to mail to Petitioner a form for filing a civil rights complaint pursuant to 42 U.S.C. § 1983 by a person in custody.
IT IS SO ORDERED. Dated: icido3 May 4, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE
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