(HC) Gaines v. Stainer, No. 1:2015cv01728 - Document 4 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Lack of Habeas Jurisdiction; ORDER DIRECTING Objections be Filed within Twenty-One Days; ORDER DIRECTING Clerk of the Court to Assign District Judge to Case signed by Magistrate Judge Jennifer L. Thurston on 11/19/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/14/2015. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LESLIE JAMES GAINES, JR., 12 Petitioner, 13 v. 14 M. D. STAINER, 15 Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-01728-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF HABEAS JURISDICTION (Doc. 1) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS ORDER DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE TO CASE In this action, Petitioner does not challenge either his conviction or sentence. Instead, he 19 alleges that he has been “set up” by prison staff for assaults by inmates. (Doc. 1, p. 3). Because the 20 allegations in the petition fail to invoke habeas jurisdiction, the Court recommends the matter be 21 DISMISSED. 22 I. 23 DISCUSSION Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of 24 each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from 25 the face of the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 26 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only 27 grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of 28 the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a 1 1 prisoner to challenge the “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 2 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S. Ct. 1827 (1973); Ramirez v. 3 Galaza, 334 F.3d 850, 859 (9th Cir. 2003)(“[H]abeas jurisdiction is absent, and a § 1983 action proper, 4 where a successful challenge to a prison condition will not necessarily shorten the prisoner’s 5 sentence”); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 6 The Ninth Circuit has also held that “[h]abeas corpus jurisdiction also exists when a petitioner 7 seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the 8 prisoner’s eligibility for parole.” Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); see also 9 Docken v. Chase, 393 F. 3d 1024, 1031 (9th Cir. 2004)(“[W]e understand Bostic’s use of the term 10 ‘likely’ to identify claims with a sufficient nexus to the length of imprisonment so as to implicate, but 11 not fall squarely within, the ‘core’ challenges identified by the Preiser Court.”) 12 In contrast to a habeas corpus challenge to the length or duration of confinement, a civil rights 13 action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of 14 confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 15 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 16 In this case, Petitioner alleges that a female prison employee and other unnamed prison staff 17 have conspired to enlist inmates to assault and attempt to kill Petitioner, and that Respondent has failed 18 in his duty to protect Petitioner as required by the Eighth Amendment. (Doc. 1, p. 9). Petitioner also 19 alludes to various other incidents in which prison staff have acted inappropriately, e.g., including 20 making threats against Petitioner to discourage him from filing grievances against prison staff, selling 21 contraband to inmates, providing weapons to inmates to injure Petitioner, and taking retaliatory action 22 against Petitioner. (Doc. 1, pp. 10-17; 29). 23 Therefore, Petitioner is challenging the conditions of his confinement, not the fact or duration of 24 his sentence. No relief requested by Petitioner in his petition would affect the fact or duration of 25 Petitioner’s sentence. This conclusion is supported by Petitioner himself, who, on the habeas form, 26 indicated that he was challenging “jail or prison conditions.” (Doc. 1, p. 1). Therefore, Petitioner is not 27 entitled to habeas corpus relief, and this petition must be dismissed. Should Petitioner wish to pursue 28 his claims, he must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. 2 ORDER 1 2 3 Accordingly, the Clerk of the Court is HEREBY DIRECTED to assign a United States District Judge to this case. RECOMMENDATION 4 5 6 7 Accordingly, the Court RECOMMENDS that the habeas corpus petition be DISMISSED for Petitioner’s failure to state any cognizable federal habeas claims. This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 9 Rules of Practice for the United States District Court, Eastern District of California. Within 21 days 10 after being served with a copy, any party may file written objections with the court and serve a copy on 11 all parties. 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 10 days (plus three days 13 if served by mail) after service of the objections. The Court will then review the Magistrate Judge’s 14 ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections 15 within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 16 951 F.2d 1153 (9th Cir. 1991). 17 18 19 20 IT IS SO ORDERED. Dated: November 19, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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