(HC) Kamyab v. Kernan, No. 1:2017cv01012 - Document 14 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jennifer L. Thurston on 1/30/2018 to grant Respondent's Motion to Dismiss Petition for failure to state a claim 12 . Referred to Judge Dale A. Drozd; Objections to F&R's due within 21-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KAVEH KAMYAB. 12 Petitioner, 13 14 v. No. 1:17-cv-01012-DAD-JLT (HC) FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO DISMISS PETITION FOR FAILURE TO STATE A CLAIM [Doc. 12] SCOTT KERNAN, 15 Respondent. [TWENTY-ONE DAY OBJECTION DEADLINE] 16 Petitioner filed a petition for writ of habeas corpus on July 31, 2017. Respondent filed a 17 18 motion to dismiss the petition for failure to state a cognizable claim on October 31, 2017. 19 Petitioner filed a response to the motion to dismiss on November 17, 2017. Because the Court 20 agrees with Respondent that the petition does not challenge the underlying conviction, but rather 21 challenges the conditions of his confinement, the Court will recommend Respondent’s motion to 22 dismiss be GRANTED. DISCUSSION 23 24 25 A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 26 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 27 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 28 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 1 1 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 2 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th 3 Cir.2001). 4 B. 5 Civil Rights Claims As Respondent correctly states, Petitioner does not challenge his underlying conviction, 6 nor does it seek release from illegal custody. Rather, Petitioner challenges the denial of an 7 administrative appeal, and he seeks a court order requiring prison officials to process the appeal. 8 He complains of the manner in which his appeal was screened and processed. None of these 9 claims and arguments lies at the core of habeas jurisdiction. 10 A habeas corpus petition is the correct method for a prisoner to challenge the “legality or 11 duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser 12 v. Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 13 1983 is the proper method for a prisoner to challenge the conditions of confinement. McCarthy v. 14 Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims 15 are not cognizable in a federal habeas action and must be dismissed. Petitioner must seek relief 16 for his complaints through a civil rights action. 17 In his response to the motion to dismiss, Petitioner requests that his habeas corpus petition 18 be construed as a civil rights complaint pursuant to Nettles. In Nettles, the Ninth Circuit held that 19 a district court has the discretion to construe a habeas petition as a civil rights action under § 20 1983. Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016). However, recharacterization is 21 appropriate only if it is “amenable to conversion on its face, meaning that it names the correct 22 defendants and seeks the correct relief,” and only after the petitioner is warned of the 23 consequences of conversion and is provided an opportunity to withdraw or amend the petition. 24 Id. Here, the Court does not find recharacterization to be appropriate. Petitioner does not name 25 the proper defendants and the claims are not amenable to conversion on their face. Accordingly, 26 the Court should not exercise its discretion to recharacterize the action. 27 28 Therefore, the Court will recommend that Respondent’s motion to dismiss the action be granted and the Clerk of Court be directed to send Petitioner a blank civil rights complaint. 2 1 2 RECOMMENDATION Accordingly, the Court RECOMMENDS that Respondent’s motion to dismiss the petition 3 be GRANTED and the Clerk of Court be DIRECTED to provide Petitioner with a blank civil 4 rights complaint form. 5 This Findings and Recommendation is submitted to the United States District Court Judge 6 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 7 of the Local Rules of Practice for the United States District Court, Eastern District of California. 8 Within twenty-one days after being served with a copy, any party may file written objections with 9 the Court and serve a copy on all parties. Such a document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be served 11 and filed within ten court days after service of the Objections. The Court will then review the 12 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that 13 failure to file objections within the specified time may waive the right to appeal the District 14 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 17 IT IS SO ORDERED. Dated: January 30, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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