(HC) Montue v. Allison, No. 1:2010cv01592 - Document 7 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS To Dismiss Petition for Writ of Habeas Corpus; ORDER DIRECTING That Objections Be Filed Within Twenty Days; ORDER DIRECTING Clerk of Court to Assign United States District Judge to Case, signed by Magistrate Judge Jennife r L. Thurston on 9/16/10: Recommending that the Petition for Writ of Habeas Corpus be DISMISSED because the petition does not allege grounds that would entitle Petitioner to habeas corpus relief re 1 Petition for Writ of Habeas Corpus filed by John Montue; Objections to F&R due by 10/12/2010. (Hellings, J)
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(HC) Montue v. Allison Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN MONTUE, 12 13 Petitioner, v. 14 KATHLEEN ALLISON, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) 1:10-cv-01592-JLT HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS ORDER DIRECTING CLERK OF COURT TO ASSIGN UNITED STATES DISTRICT JUDGE TO CASE 17 18 Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. On September 2, 2010, Petitioner filed his petition for writ of 20 habeas corpus in this Court. (Doc. 1). 21 Petitioner alleges that he is presently incarcerated at the California Substance Abuse 22 Treatment Facility (“CSATF”), serving a sentence of life with the possibility of parole for his 23 1979 conviction in the Sacramento County Superior Court for kidnaping and robbery. (Doc. 1, p. 24 1). However, Petitioner does not challenge either his conviction or sentence. 25 alleges that prison personnel “inappropriately confiscated petitioner’s 13 inch color television 26 and donated it to the state, in violation of his due process rights, while his administrative appeal 27 was still pending. (Id., p. 4). The documents appended to the petition indicate that when 28 Petitioner arrived at CSATF, he was advised that he could not keep his 13-inch color television. Instead, Petitioner 1 Dockets.Justia.com 1 Petitioner was told that the shipping cost to send his television to his relatives would be twenty 2 dollars. Subsequently, Petitioner alleges that his mother sent twenty dollars that was credited to 3 Petitioner’s prison trust account. However, previous charges immediately reduced Petitioner’s 4 trust account balance to zero. (Doc. 1, p. 6). Because Petitioner did not have sufficient funds in 5 his prison trust account to send the television to relatives, the television was donated to the State 6 of California by prison staff. (Doc. 1, p. 20). 7 8 9 DISCUSSION Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 10 plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." Rule 11 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 12 (9th Cir.1990). A federal court may only grant a petition for writ of habeas corpus if the 13 petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 14 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the “legality 15 or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, 16 Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 17 2003)(“[H]abeas jurisdiction is absent...where a successful challenge to a prison condition will 18 not necessarily shorten the prisoner’s sentence.”); Advisory Committee Notes to Rule 1 of the 19 Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 20 1983 is the proper method for a prisoner to challenge the conditions of that confinement. 21 McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 22 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 23 In this case, as mentioned, Petitioner alleges that prison authorities inappropriately 24 confiscated and donated his 13-inch color television set because Petitioner did not have sufficient 25 funds in his prison trust account to send the television to relatives. Petitioner does not indicate 26 what relief he requests, although it is difficult to see how Petitioner could be seeking any relief 27 other than return of the donated television set or the crediting of its monetary equivalent to his 28 prison trust account. Petitioner is thus challenging the conditions of his confinement, not the fact 2 1 or duration of that confinement. Therefore, Petitioner is not entitled to habeas corpus relief, and 2 this petition should be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do 3 so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. 4 ORDER 5 The Court HEREBY ORDERS as follows: 6 1. 7 The Clerk of the Court is DIRECTED to assign a United States District Judge to this case. 8 9 RECOMMENDATION For the foregoing reasons, the Court RECOMMENDS: 10 1. That the petition for writ of habeas corpus (Doc. 1), be DISMISSED because the 11 petition does not allege grounds that would entitle Petitioner to habeas corpus relief; 12 This Findings and Recommendation is submitted to the United States District Judge 13 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 14 Local Rules of Practice for the United States District Court, Eastern District of California. 15 Within twenty days after being served with a copy, any party may file written objections with the 16 court and serve a copy on all parties. Such a document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate 18 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file 19 objections within the specified time may waive the right to appeal the District Court’s order. 20 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 IT IS SO ORDERED. 23 Dated: September 16, 2010 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3
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