(HC) El-Shaddai v. Gipson, No. 1:2011cv02018 - Document 4 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus 1 ; ORDER Directing that Objections be Filed within Twenty Days; ORDER Directing Clerk of Court to Assign Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 12/14/11. Referred to Judge O'Neill. This case has been assigned to District Judge Lawrence J. O'Neill and Magistrate Judge Jennifer L. Thurston; The new case number is 1:11-cv-02018-LJO-JLT (HC).(Verduzco, M)
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(HC) El-Shaddai v. Gipson Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ADONAI EL-SHADDAI, 12 Petitioner, 13 v. 14 C. GIPSON, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) 1:11-cv-02018-JLT HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE 17 Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. On December 9, 2011, Petitioner filed his petition for writ of 19 habeas corpus in this Court. (Doc. 1). 20 Petitioner alleges that he is in custody of the California Department of Corrections and 21 Rehabilitation (“CDCR”), serving a sentence of life with the possibility of parole, as a result of a 22 conviction for kidnapping for robbery and two counts of aiding and abetting rape in the Los 23 Angeles County Superior Court on July 25, 1979. (Doc. 1, p. 1). However, Petitioner does not 24 challenge either his conviction or sentence. 25 his petition: (1) CDCR wrongfully denied his request to be served a kosher Jewish diet in prison; 26 and (2) CDCR wrongfully denied his request for a name change to conform to his religious 27 beliefs. (Doc. 1, p. 13). 28 /// Instead, Petitioner raises two grounds for relief in 1 Dockets.Justia.com 1 2 DISCUSSION Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 3 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 4 plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." Rule 5 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 6 (9th Cir.1990). A federal court may only grant a petition for writ of habeas corpus if the 7 petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 8 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the “legality 9 or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, 10 Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S. Ct. 1827 (1973); Ramirez v. Galaza, 334 F.3d 11 850, 859 (9th Cir. 2003)(“[H]abeas jurisdiction is absent, and a § 1983 action proper, where a 12 successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence.”); 13 Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 14 The Ninth Circuit has also held that “[h]abeas corpus jurisdiction also exists when a 15 petitioner seeks expungement of a disciplinary finding from his record if expungement is likely 16 to accelerate the prisoner’s eligibility for parole.” Bostic v. Carlson, 884 F.2d 1267, 1269 (9th 17 Cir. 1989); see also Docken v. Chase, 393 F. 3d 1024, 1031 (9th Cir. 2004)(“[W]e understand 18 Bostic’s use of the term ‘likely’ to identify claims with a sufficient nexus to the length of 19 imprisonment so as to implicate, but not fall squarely within, the ‘core’ challenges identified by 20 the Preiser Court.”) 21 In contrast to a habeas corpus challenge to the length or duration of confinement, a civil 22 rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the 23 conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 24 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules 25 Governing Section 2254 Cases. 26 In this case, as mentioned, Petitioner alleges that his request for a kosher Jewish diet and 27 for a name change on religious grounds were wrongfully denied by Respondent. As relief, 28 Petitioner requests that he be admitted into the prison Jewish Diet Program, that he be allowed a 2 1 legal name change as a tenet mandated by his religious beliefs, that he be allowed to join a 2 Kabbalah Study Group to further his religious training, and that the Court order Respondent and 3 its employees to refrain from harassment, threats, or punishment of Petitioner during the 4 pendency of his petition. (Doc. 1, p. 13). 5 Petitioner is thus challenging the conditions of his confinement, not the fact or duration of 6 that confinement. No relief requested by Petitioner in his petition would affect, nor even 7 potentially could affect, the fact or duration of Petitioner’s sentence. Therefore, Petitioner is not 8 entitled to habeas corpus relief, and this petition must be dismissed. Should Petitioner wish to 9 pursue his claims, Petitioner must do so by way of a civil rights complaint pursuant to 42 U.S.C. 10 § 1983. 11 ORDER 12 13 For the foregoing reasons, the Court HEREBY DIRECTS the clerk of the Court to assign a United States District Judge to this case. 14 RECOMMENDATION 15 Accordingly, the Court RECOMMENDS: 16 1. That the petition for writ of habeas corpus (Doc. 1), be DISMISSED because the 17 petition does not allege grounds that would entitle Petitioner to habeas corpus relief; and, 18 2. That the Clerk of Court be DIRECTED to send Petitioner the standard form for claims 19 pursuant to 42 U.S.C. § 1983. 20 This Findings and Recommendation is submitted to the United States District Judge 21 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 22 Local Rules of Practice for the United States District Court, Eastern District of California. 23 Within twenty days after being served with a copy, any party may file written objections with the 24 court and serve a copy on all parties. Such a document should be captioned “Objections to 25 Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate 26 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 27 /// 28 /// 3 1 2 The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED. 5 Dated: December 14, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4