(HC) Wishart v. Adler et al, No. 1:2009cv01118 - Document 8 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Petitioner's 3 Motion for an Order Directing the Warden to Relinquish Stored Property be Dismissed signed by Magistrate Judge Dennis L. Beck on 02/17/2010. Referred to Judge O'Neill; Objections to F&R due by 3/22/2010. (Flores, E)

Download PDF
(HC) Wishart v. Adler et al Doc. 8 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 DONALD E. WISHART, 9 Petitioner, 10 v. 11 12 13 NEIL H. ADLER, Respondent. ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-01118 LJO YNP [DLB] (HC) FINDINGS AND RECOMMENDATION REGARDING PETITIONER’S MOTION FOR TEMPORARY RESTRAINING ORDER [Doc. #3] 14 15 16 17 18 19 20 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 22541. On July 16, 2009, Petitioner filed a motion requesting temporary restraining order directing the warden of his institution to relinquish his legal property. (Doc. #3.) DISCUSSION Petitioner is informed that claims concerning the conditions of one’s confinement are properly 21 raised in a civil rights complaint filed pursuant to Bivens v. Six Unknown Named Agents of Federal 22 Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens action provides petitioners with a remedy for 23 violation of civil rights by federal actors. C.f., Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) 24 (challenges to conditions of confinement by state prisoners should be presented in a 42 U.S.C. § 1983 25 civil rights action rather than a habeas corpus petition). 26 27 In this case, Petitioner seeks injunctive relief compelling prison officials to relinquish property. This claim is not properly brought in a petition for writ of habeas corpus. Petitioner’s complaint 28 1 Dockets.Justia.com 1 clearly concerns the conditions of his confinement and thus is appropriately raised in a civil rights 2 action. Accordingly, the Court will recommend that Petitioner’s motion be dismissed. 3 4 5 6 RECOMMENDATION Accordingly, the Court RECOMMENDS that Petitioner’s motion for an order directing the warden to relinquish stored property be DISMISSED. This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill, 7 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 8 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of 9 California. Within thirty (30) days after being served with a copy of this Findings and 10 Recommendation, any party may file written objections with the Court and serve a copy on all parties. 11 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 12 Recommendation.” Replies to the Objections shall be served and filed within ten (10) court days 13 (plus three days if served by mail) after service of the Objections. The Court will then review the 14 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure 15 to file objections within the specified time may waive the right to appeal the Order of the District 16 Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 IT IS SO ORDERED. Dated: 3b142a February 17, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.