-GSA (HC) Palomar v. California Department of Corrections and Rehabilitation, No. 1:2011cv01497 - Document 8 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that the 1 Petition for Writ of Habeas Corpus be Dismissed and the Clerk of Court be Directed to Send Petitioner the Standard Form for Claims Pursuant to 42 U.S.C. 1983 signed by Magistrate Judge Gary S. Austin on 9/26/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 10/31/2011. (Sant Agata, S)

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-GSA (HC) Palomar v. California Department of Corrections and Rehabilitation Doc. 8 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 GEORGE RUIZ PALOMAR, II, 1:11-CV-01497 AWI GSA HC 10 Petitioner, 11 FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS v. 12 13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, 14 Respondent. 15 / 16 On September 7, 2011, Petitioner filed the instant petition for writ of habeas corpus in this 17 Court. 18 DISCUSSION 19 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review 20 of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears 21 from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 22 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only 23 grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation 24 of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a 25 prisoner to challenge the “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 26 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes 27 to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 28 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. 2 McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 3 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 4 In this case, Petitioner claims prison staff are denying him access to his prison records. He 5 also claims prison staff are denying him basic dental care such as filling cavities and providing 6 calcium. Petitioner is challenging the conditions of his confinement, not the fact or duration of that 7 confinement. Thus, Petitioner is not entitled to habeas corpus relief, and this petition must be 8 dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a civil rights 9 complaint pursuant to 42 U.S.C. § 1983. 10 RECOMMENDATION 11 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 12 DISMISSED because the petition does not allege grounds that would entitle Petitioner to habeas 13 corpus relief. The Court further RECOMMENDS that the Clerk of Court be DIRECTED to send 14 Petitioner the standard form for claims pursuant to 42 U.S.C. § 1983. 15 This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United 16 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 17 the Local Rules of Practice for the United States District Court, Eastern District of California. 18 Within thirty (30) days after service of the Findings and Recommendation, Petitioner may file 19 written objections with the court. Such a document should be captioned “Objections to Magistrate 20 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 21 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the 22 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 23 1153 (9th Cir. 1991). 24 25 26 IT IS SO ORDERED. Dated: 6i0kij September 26, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28 U .S. D istrict C ourt E. D . C alifornia cd 2

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