(HC) Bell v. Harrington, No. 1:2010cv00852 - Document 7 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the 6 Petition for Writ of Habeas Corpus be Dismissed; the Clerk be Directed to Close the Case; the Court Decline to Issue a Certificate of Appealability; and the Clerk be Directed to Send Petitioner a Civil Rights Complaint Form signed by Magistrate Judge Sheila K. Oberto on 12/6/2010. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/10/2011. (Sant Agata, S)
Download PDF
(HC) Bell v. Harrington Doc. 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 HORACE BELL, 11 Petitioner, 12 13 14 v. KELLY HARRINGTON, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00852-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION (Doc. 6) DEADLINE FOR FILING OBJECTIONS: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The 19 matter has been referred to the Magistrate Judge pursuant to 28 20 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending 21 before the Court is the first amended petition (FAP), filed in 22 this Court on June 28, 2010 (doc. 6). 23 I. Screening the First Amended Petition 24 Rule 4 of the Rules Governing § 2254 Cases in the United 25 States District Courts (Habeas Rules) requires the Court to make 26 a preliminary review of each petition for writ of habeas corpus. 27 The Court must summarily dismiss a petition "[i]f it plainly 28 1 Dockets.Justia.com 1 appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court....” 3 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 4 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 5 1990). 6 grounds of relief available to the Petitioner; 2) state the facts 7 supporting each ground; and 3) state the relief requested. 8 Notice pleading is not sufficient; rather, the petition must 9 state facts that point to a real possibility of constitutional Habeas Rule 2(c) requires that a petition 1) specify all 10 error. 11 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 12 Allison, 431 U.S. 63, 75 n. 7 (1977)). 13 that are vague, conclusory, or palpably incredible are subject to 14 summary dismissal. 15 Cir. 1990). 16 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 17 corpus either on its own motion under Habeas Rule 4, pursuant to 18 the respondent's motion to dismiss, or after an answer to the 19 petition has been filed. 20 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 21 (9th Cir. 2001). 22 Advisory Committee Notes to Habeas Rule Petitioner is an inmate of Kern Valley State Prison (KVSP) 23 serving a sentence of fifty-nine (59) years imposed by the Los 24 Angeles Superior Court in 1994 for kidnaping and robbery. 25 1.) 26 further level of administrative remedy within the California 27 Department of Corrections and Rehabilitation (CDCR), and racial 28 discrimination. (FAP Petitioner raises two grounds in the petition: absence of a (FAP 4.) He refers to his state petition for 2 1 2 writ of habeas corpus to provide supporting facts. In a state petition for writ of habeas corpus filed in 3 California Supreme Court case no. S182576, Petitioner alleged 4 that his CDC 1824 appeal form was overdue, and no further level 5 of appeal remained in the state prison’s internal appeal process. 6 He alleged that on August 9, 2007, he filed a CDC 1824 appeal 7 form and “reasonable modification accommodation,” and on August 8 14, 2007, he filed a request for an interview and a staff 9 complaint. (Pet. 11.) He asserts that the warden and appeals 10 coordinator failed to enforce his right to appeal, and he alleges 11 unspecified “racial discrimination” against Petitioner, who is a 12 Black man, in violation of the Fourteenth Amendment. 13 Review of the documentation apparently submitted in connection 14 with the citizen’s complaint of August 7, 2007, reveals that 15 Petitioner’s complaints concern the failure of Petitioner’s 16 wheelchair, which on August 9, 2007, resulted in Petitioner’s 17 falling from the wheelchair and suffering pain and delayed 18 accommodation and a refusal of medical treatment; Petitioner’s 19 attempt to obtain wheelchair gloves and a seat cushion in 2010; 20 Petitioner’s receipt of an allegedly inadequate medical response 21 to sores in 2010; and his suffering inadequate cleaning and 22 abatement response to his having been bitten by a spider in 2009. 23 (FAP 23-24, 40, 43, 48, 51, 62.) (Pet. 12.) 24 II. Conditions of Confinement 25 A federal court may only grant a petition for writ of habeas 26 corpus if the petitioner can show that "he is in custody in 27 violation of the Constitution or laws or treaties of the United 28 States." 28 U.S.C. § 2254(a). A habeas corpus petition is the 3 1 correct method for a prisoner to challenge the legality or 2 duration of his confinement. 3 (9th Cir. 1991)(quoting Preiser v. Rodriguez, 411 U.S. 475, 485 4 (1973)); Advisory Committee Notes to Rule 1 of the Rules 5 Governing Section 2254 Cases (Habeas Rules), 1976 Adoption. 6 Badea v. Cox, 931 F.2d 573, 574 In contrast, a civil rights action pursuant to 7 42 U.S.C. § 1983 is the proper method for a prisoner to challenge 8 the conditions of that confinement. 9 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 10 F.2d at 574; Advisory Committee Notes to Habeas Rule 1, 1976 11 Adoption. 12 McCarthy v. Bronson, 500 In this case, Petitioner alleges that he has been refused 13 medical treatment in prison and has suffered various conditions 14 of confinement. Petitioner’s allegations concern his conditions 15 of confinement. Petitioner has not alleged facts that relate to 16 the fact or duration of his confinement. 17 entitled to habeas corpus relief, and the petition must be 18 dismissed. 19 Thus, Petitioner is not Should Petitioner wish to pursue his claims, he must do so 20 by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. 21 The Clerk will be directed to send an appropriate complaint form 22 to Petitioner. 23 III. 24 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 25 appealability, an appeal may not be taken to the court of appeals 26 from the final order in a habeas proceeding in which the 27 detention complained of arises out of process issued by a state 28 court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 4 1 U.S. 322, 336 (2003). 2 only if the applicant makes a substantial showing of the denial 3 of a constitutional right. 4 petitioner must show that reasonable jurists could debate whether 5 the petition should have been resolved in a different manner or 6 that the issues presented were adequate to deserve encouragement 7 to proceed further. 8 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 9 certificate should issue if the Petitioner shows that jurists of A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A 10 reason would find it debatable whether the petition states a 11 valid claim of the denial of a constitutional right and that 12 jurists of reason would find it debatable whether the district 13 court was correct in any procedural ruling. 14 529 U.S. 473, 483-84 (2000). 15 conducts an overview of the claims in the habeas petition, 16 generally assesses their merits, and determines whether the 17 resolution was debatable among jurists of reason or wrong. 18 It is necessary for an applicant to show more than an absence of 19 frivolity or the existence of mere good faith; however, it is not 20 necessary for an applicant to show that the appeal will succeed. 21 Miller-El v. Cockrell, 537 U.S. at 338. Slack v. McDaniel, In determining this issue, a court 22 A district court must issue or deny a certificate of 23 appealability when it enters a final order adverse to the 24 applicant. Id. 25 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 26 debate whether the petition should have been resolved in a 27 different manner. 28 of the denial of a constitutional right. Petitioner has not made a substantial showing 5 Accordingly, the Court 1 DECLINES to issue a certificate of appealability. 2 IV. 3 Accordingly, it is RECOMMENDED that: 4 1) The petition for writ of habeas corpus be DISMISSED; and 5 2) The Clerk Be DIRECTED to close the case; and 6 3) The Court DECLINE to issue a certificate of 7 appealability; and 8 9 Recommendation 4) The Clerk be DIRECTED to send to Petitioner a civil rights complaint form for a person in custody. 10 11 IT IS SO ORDERED. 12 Dated: ie14hj December 6, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6