(HC) Fordjour v. Jordan, et al., No. 1:2009cv00060 - Document 23 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that PETITIONER'S MOTION FOR IMMEDIATE RELEASE and EMERGENCY MOTION FOR ISSUANCE OF AN ORDER TO SHOW CAUSE, IMMEDIATE RELEASE, AND INJUNCTIVE RELIEF BE DENIED re 1 Petition for Writ of Habeas Corpus filed by Charles Fordjour signed by Magistrate Judge Sheila K. Oberto on 6/28/2010. Referred to Judge Wanger; (Objections to F&R due by 8/3/2010)(Marrujo, C)
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(HC) Fordjour v. Jordan, et al. Doc. 23 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CHARLES FORDJOUR, 11 Petitioner, 12 13 14 v. KINGS COUNTY SHERIFF CHRIS JORDAN, et al., 15 Respondents. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—00060-OWW-SKO-HC FINDINGS AND RECOMMENDATION TO DENY PETITIONER’S MOTION FOR IMMEDIATE RELEASE (DOC. 6) FINDINGS AND RECOMMENDATION TO DENY PETITIONER’S EMERGENCY MOTION FOR ISSUANCE OF AN ORDER TO SHOW CAUSE, IMMEDIATE RELEASE, AND INJUNCTIVE RELIEF (Doc. 7) OBJECTIONS DEADLINE: 30 days 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus 20 ostensibly pursuant to 28 U.S.C. § 2254. 21 referred to the Magistrate Judge pursuant to 28 U.S.C. 22 § 636(b)(1) and Local Rules 302 and 303. 23 Court are Petitioner’s motion for immediate release on his own 24 recognizance, filed on January 29, 2009, and Petitioner’s 25 emergency motion for immediate release, injunctive relief, and 26 for issuance of an order to show cause, filed on March 2, 2009. The matter has been Pending before the 27 I. 28 On June 8, 2009, the Court issued findings and Background 1 Dockets.Justia.com 1 recommendations to deny Petitioner’s motions for release and for 2 injunctive relief. 3 also recommended dismissal of the petition because Petitioner, 4 who complained of his pretrial detention with respect to state 5 criminal charges, purported to proceed pursuant to 28 U.S.C. § 6 2254, which authorizes habeas relief for persons in custody 7 pursuant to the judgment of a state court; however, there was no 8 state court judgment due to the pretrial status of the relevant 9 state court criminal proceedings.1 10 (Doc. 10.) In the same document, the Court The Court adopted the findings and recommendation of the 11 Magistrate Judge to dismiss the action, and the action was 12 dismissed. 13 United States Court of Appeals for the Ninth Circuit, filed on 14 December 10, 2009, the judgment of dismissal was summarily 15 vacated, and the case was remanded to allow the Court to consider 16 Petitioner’s previously filed objections to the findings and 17 recommendations and to enter a new order. 18 Magistrate Judge vacated the findings and recommendations. 19 21.)2 20 Magistrate Judge. 21 22 Petitioner appealed the judgment. By order of the On April 1, 2010, the (Doc. On April 14, the action was reassigned to the undersigned Because the findings and recommendations were vacated without exception, the Court concludes that Petitioner’s two 23 24 25 26 27 28 1 If a petitioner is a pretrial detainee facing state criminal charges and thus is not in custody "pursuant to the judgment of a State court" at the time the petition is filed, then the petition should proceed pursuant to 28 U.S.C. § 2241. 28 U.S.C. §§ 2254, 2241; Stow v. Murashige, 389 F.3d 880, 885 (9th Cir. 2004). 2 By separate order, the Court has considered the vacated findings and recommendations and Petitioner’s objections. 2 1 motions concerning release remain pending. 2 II. 3 On January 28, 2009, Petitioner filed a motion for immediate Petitioner’s Motion for Immediate Release 4 release on his own recognizance, arguing that he was entitled to 5 release pursuant to state law. (Doc. 6.) 6 In habeas corpus proceedings, a district court has inherent 7 power, derived from the power to issue the writ of habeas corpus 8 itself and the habeas corpus statutes (28 U.S.C. §§ 2241-2255), 9 to direct the release of a state prisoner on his or her own 10 recognizance or on a surety. 11 507 (9th Cir. 1987). 12 The decision is made as appears fitting to the Court; relevant 13 factors include the risk of flight, risk of danger to the 14 community, the availability of alternative remedies to the 15 petitioner. 16 Marino v. Vasquez, 812 F.2d 499, Fed. R. App. P. 23 governs release on bail. 812 F.2d at 508-09. However, federal courts reserve bail pending resolution of a 17 habeas corpus petition to "extraordinary cases involving special 18 circumstances" and where there is a high probability of the 19 petitioner's success on the merits. 20 F.3d 1281, 1282 (9th Cir. 1994), quoting, Land v. Deeds, 878 F.2d 21 318, 318-319 (9th Cir. 1989). 22 circumstances that make him exceptional and especially deserving 23 of special treatment in the interests of justice. 24 California, 328 F.2d 159, 162 (9th Cir. 1964). 25 also consider the petitioner’s risk of flight and the danger to 26 the community should the petitioner be released. 27 Vasquez, 812 F.2d 499, 508-09 (9th Cir. 1987). 28 United States v. Mett, 41 Further, the petitioner must show Benson v. The Court must Marino v. In the present case, Petitioner has not alleged specific 3 1 2 3 4 facts demonstrating that he is entitled to release. Accordingly, it will be recommended that Petitioner’s motion for immediate release be denied. III. Petitioner’s Motion for Issuance of an Order to Show Cause, Immediate Release, and Injunctive Relief 5 On March 2, 2009, Petitioner filed a motion for issuance of 6 an order to show cause, immediate release, and for injunctive 7 relief. (Doc. 7.) Petitioner asserts in the motion generally 8 that he was subjected to torture and experimentation by 9 Respondents, custodians at the Kings County Jail, involving x10 rays, lasers, radiation, microwaves, and other electronic means. 11 He states that he suffered permanent injuries to his genitals as 12 a result. He also asserts that he was subject to illegal seizure 13 and kidnaping. (Mot. 2, 4.) However, Petitioner does not state 14 any specific facts concerning the identity of the persons 15 engaging in such conduct, the particular injuries sustained, or 16 the dates, times, and precise conduct or events involved. 17 Insofar as Petitioner seeks an order to show cause to be 18 issued to Respondent to show why relief on the petition should 19 not be granted, Petitioner’s motion is premature. The Court’s 20 initial screening of the petition has not been completed, and the 21 action is not ready for disposition on the merits. Thus, it will 22 be recommended that Petitioner’s motion for issuance of an 23 immediate order to show cause be denied. 24 To the extent that Petitioner seeks immediate release, 25 Petitioner has not shown that he is entitled to release on his 26 own recognizance or on bail. 27 With respect to Petitioner’s motion for injunctive relief, 28 4 1 after reading the motion in its entirety, it is clear that 2 Petitioner is challenging the conditions of his confinement, not 3 the fact or duration of that confinement. 4 It is established that relief by way of a writ of habeas 5 corpus pursuant to 28 U.S.C. § 2241 extends to a prisoner who 6 shows that the custody violates the Constitution, laws, or 7 treaties of the United States. 8 9 28 U.S.C. § 2241(c)(3). A habeas corpus petition is the correct method for a prisoner to challenge the legality or duration of his 10 confinement. 11 (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); 12 advisory committee note to Rule 1 of the Rules Governing Section 13 2254 Cases (Habeas Rules), 1976 adoption. 14 Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) In contrast, a civil rights action pursuant to 42 U.S.C. § 15 1983 is the proper method for a prisoner to challenge the 16 conditions of that confinement. 17 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 18 574; advisory committee note to Habeas Rule 1, 1976 adoption. 19 Because in the motions Petitioner seeks to challenge the McCarthy v. Bronson, 500 U.S. 20 conditions of his confinement, and not the legality or duration 21 of his confinement, these particular claims are cognizable in a 22 civil rights action rather than a petition for writ of habeas 23 corpus. 24 25 Accordingly, it will be recommended that the motion for injunctive relief be denied. 26 IV. 27 In accordance with the foregoing, it is RECOMMENDED that: 28 1) Petitioner’s motion for immediate release on his own Recommendation 5 1 recognizance be DENIED; and 2 3 2) Petitioner’s emergency motion for issuance of an order to show cause, immediate release, and injunctive relief be DENIED. 4 These findings and recommendations are submitted to the 5 United States District Court Judge assigned to the case, pursuant 6 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 7 the Local Rules of Practice for the United States District Court, 8 Eastern District of California. 9 being served with a copy, any party may file written objections 10 with the Court and serve a copy on all parties. Such a document 11 should be captioned “Objections to Magistrate Judge’s Findings 12 and Recommendations.” 13 and filed within fourteen (14) days (plus three (3) days if 14 served by mail) after service of the objections. 15 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 16 636 (b)(1)(C). 17 objections within the specified time may waive the right to 18 appeal the District Court’s order. 19 1153 (9th Cir. 1991). Within thirty (30) days after Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 20 21 22 IT IS SO ORDERED. 23 Dated: ie14hj June 28, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 6
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