(HC) Jones v. Tate, No. 1:2010cv00068 - Document 21 (E.D. Cal. 2010)

Court Description: ORDER Granting Petitioner's 20 Request for an Extension of Time to File Opposition to Respondent's 18 Motion to Dismiss; ORDER Deeming Petitioner's Motion for Extension of Time to be in Part a Request for an Injunction; FINDINGS and RECOMMENDATIONS to Deny Petitioner's Request for an Injunction signed by Magistrate Judge Sheila K. Oberto on 11/15/2010. Referred to Judge Ishii;, Opposition due by 12/20/2010; Objections to F&R due by 12/20/2010. (Flores, E)
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(HC) Jones v. Tate Doc. 21 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FREDRICK JONES JR., 10 Petitioner, 11 12 13 v. DIRECTOR OF CORRECTIONS MATTHEW TATE, 14 Respondent. 15 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00068-AWI-SKO-HC ORDER GRANTING PETITIONER’S REQUEST FOR AN EXTENSION OF TIME TO FILE OPPOSITION TO RESPONDENT’S MOTION TO DISMISS (Docs. 20, 18) DEADLINE FOR OPPOSITION: THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER ORDER DEEMING PETITIONER’S MOTION FOR EXTENSION OF TIME TO BE IN PART A REQUEST FOR AN INJUNCTION (Doc. 20) FINDINGS AND RECOMMENDATION TO DENY PETITIONER’S REQUEST FOR AN INJUNCTION (Doc. 20) 19 20 Petitioner is a state prisoner proceeding pro se with a 21 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 22 The matter has been referred to the Magistrate Judge pursuant to 23 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before 24 the Court is Petitioner’s request for an extension of time filed 25 on November 8, 2010. 26 I. Request for Extension of Time 27 Petitioner requests a sixty-day extension of time within 28 1 Dockets.Justia.com 1 which to respond to Respondent’s motion to dismiss the 2 proceeding. 3 necessary, Petitioner has not shown that a sixty-day period is 4 presently necessary in order to prepare a response. 5 Although Petitioner has shown that an extension is Good cause appearing, Petitioner is GRANTED thirty days from 6 the date of service of this order in which to respond to 7 Respondent’s motion to dismiss. 8 II. Deeming the Request for an Extension to Be in Part a Request for an Injunction 9 In the request for an extension of time, Petitioner requests 10 affirmative relief against the prison litigation department. The 11 Court thus DEEMS the request for an extension of time to be in 12 part a request for an injunction. 13 III. Request for an Injunction 14 Petitioner states that he was charged with murder and placed 15 in administrative segregation at High Desert State Prison as a 16 result of a fight in September. Further, he has been separated 17 from his legal property, and he is given less than two hours per 18 week of access to the prison’s law library. Petitioner asks that 19 this Court inquire about the matter, and he requests that the 20 Court order the prison’s litigation department to give him access 21 to his legal materials. 22 After reading the request in its entirety, the Court 23 concludes that Petitioner is challenging the conditions of his 24 confinement, not the fact or duration of that confinement. 25 It is established that relief by way of a writ of habeas 26 corpus pursuant to 28 U.S.C. § 2241 extends to a prisoner who 27 shows that the custody violates the Constitution, laws, or 28 2 1 2 treaties of the United States. 28 U.S.C. § 2241(c)(3). A habeas corpus petition is the correct method for a 3 prisoner to challenge the legality or duration of his 4 confinement. 5 (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); 6 Advisory Committee Note to Rule 1 of the Rules Governing Section 7 2254 Cases (Habeas Rules), 1976 Adoption. 8 9 Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the 10 conditions of that confinement. 11 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 12 574; Advisory Committee Note to Habeas Rule 1, 1976 adoption. 13 Because in the request Petitioner seeks to challenge the McCarthy v. Bronson, 500 U.S. 14 conditions of his confinement, and not the legality or duration 15 of his confinement, these particular claims are cognizable in a 16 civil rights action rather than a petition for writ of habeas 17 corpus. 18 19 Accordingly, it will be recommended that the request for injunctive relief be denied. 20 IV. 21 In accordance with the foregoing, it is RECOMMENDED that: 22 1) Petitioner’s request for injunctive relief be DENIED. 23 These findings and recommendations are submitted to the 24 United States District Court Judge assigned to the case, pursuant 25 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 26 the Local Rules of Practice for the United States District Court, 27 Eastern District of California. 28 being served with a copy, any party may file written objections Recommendation Within thirty (30) days after 3 1 with the Court and serve a copy on all parties. Such a document 2 should be captioned “Objections to Magistrate Judge’s Findings 3 and Recommendations.” 4 and filed within fourteen (14) days (plus three (3) days if 5 served by mail) after service of the objections. 6 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 7 636 (b)(1)(C). 8 objections within the specified time may waive the right to 9 appeal the District Court’s order. 10 Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 IT IS SO ORDERED. 13 Dated: ie14hj November 15, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4