-SMS (HC) Harris v. Rios, Jr., No. 1:2010cv02208 - Document 9 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATION Regarding Petition for Writ Habeas Corpus, signed by Magistrate Judge Sandra M. Snyder on 2/16/11: Recommending that the petition for writ of habeas 1 be DISMISSED because the petition does not allege grounds that wou ld entitle Petitioner to habeas corpus relief. The Court further RECOMMENDS that the Clerk of Court be DIRECTED to send Petitioner blank forms for filing a civil rights action; Objections to F&R due within thirty (30) days after service of the Findings and Recommendations (Hellings, J)

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-SMS (HC) Harris v. Rios, Jr. Doc. 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DONTE ROLANDO HARRIS, 11 ) ) ) ) ) ) ) ) ) ) ) Petitioner, 12 v. 13 14 HECTOR A. RIOS, JR., 15 Respondent. 1:10-CV-02208 AWI SMS HC FINDINGS AND RECOMMENDATION REGARDINGPETITION FOR WRIT OF HABEAS CORPUS ) 16 17 18 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 19 DISCUSSION 20 On November 29, 2010, Petitioner filed the instant petition for writ of habeas corpus. 21 Petitioner complains that he is being assigned to a prison program for which he is not eligible. He 22 requests a stay of the transfer to the new program. 23 Writ of habeas corpus relief extends to a person in custody under the authority of the United 24 States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner can show 25 he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 26 § 2241(c)(3). However, where a Petitioner seeks to challenge the conditions of his confinement, his 27 claims are cognizable in a civil rights action rather than a habeas corpus action. In the federal 28 context, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 (1971), provides petitioners with a remedy for violation of civil rights by federal actors. C.f., Badea 2 v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (challenges to conditions of confinement by state prisoners 3 should be presented in a 42 U.S.C. § 1983 civil rights action rather than a habeas corpus petition). 4 In this case, Petitioner’s complaints involve the conditions of his confinement, not the fact or 5 duration of that confinement. Thus, Petitioner is not entitled to habeas corpus relief and this petition 6 must be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a 7 civil rights complaint pursuant to Bivens, 403 U.S. 388 (1971) and 42 U.S.C. § 1983. 8 RECOMMENDATION 9 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 10 DISMISSED because the petition does not allege grounds that would entitle Petitioner to habeas 11 corpus relief. The Court further RECOMMENDS that the Clerk of Court be DIRECTED to send 12 Petitioner blank forms for filing a civil rights action. 13 This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United 14 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 15 the Local Rules of Practice for the United States District Court, Eastern District of California. 16 Within thirty (30) days after service of the Findings and Recommendation, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall 19 be served and filed within fourteen (14) days after service of the objections. The Court will then 20 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised 21 that failure to file objections within the specified time may waive the right to appeal the District 22 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 IT IS SO ORDERED. 25 Dated: icido3 February 16, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 2

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