(HC) Neale v. Sherman, No. 1:2017cv01492 - Document 5 (E.D. Cal. 2017)

Court Description: ORDER directing Clerk of Court to assign District Judge; case assigned to District Judge Dale A. Drozd, new case number 1:17-cv-01492-DAD-JLT-(HC).FINDINGS and RECOMMENDATIONS to summarily dismiss Petition 1 signed by Magistrate Judge Jennifer L. Thurston on 11/11/2017. Referred to Judge Dale A. Drozd; Objections to F&R due by 12/7/2017. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH NEALE, JR.. 12 Petitioner, 13 14 No. 1:17-cv-01492-JLT (HC) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE v. STU SHERMAN, Warden, 15 Respondent. 16 FINDINGS AND RECOMMENDATION TO SUMMARILY DISMISS PETITION [TWENTY-ONE DAY OBJECTION DEADLINE] 17 Petitioner filed a petition for writ of habeas corpus on November 6, 2017. The petition 18 19 does not challenge the underlying conviction but presents various claims concerning the 20 conditions of his confinement. Because habeas corpus is not the proper avenue for seeking relief 21 for conditions of confinement, the Court will recommend the petition be DISMISSED. DISCUSSION 22 23 24 A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 25 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 26 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 27 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 28 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 1 1 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th 2 Cir.2001). 3 B. 4 Civil Rights Claims Petitioner does not challenge his conviction. He claims that he is a mobility-impaired 5 inmate, and he is not being provided a seated walker, a seat cushion, and a double mattress. A 6 habeas corpus petition is the correct method for a prisoner to challenge the “legality or duration” 7 of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. 8 Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 9 1983 is the proper method for a prisoner to challenge the conditions of confinement. McCarthy v. 10 Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims 11 are not cognizable in a federal habeas action and must be dismissed. Petitioner must seek relief 12 for his complaints by way of a civil rights action. 13 In Nettles, the Ninth Circuit held that a district court has the discretion to construe a 14 habeas petition as a civil rights action under § 1983. Nettles v. Grounds, 830 F.3d 922, 936 (9th 15 Cir. 2016). However, recharacterization is appropriate only if it is “amenable to conversion on its 16 face, meaning that it names the correct defendants and seeks the correct relief,” and only after the 17 petitioner is warned of the consequences of conversion and is provided an opportunity to 18 withdraw or amend the petition. Id. Here, the Court does not find recharacterization to be 19 appropriate. Petitioner does not name the proper defendants and the claims are not amenable to 20 conversion on their face. Accordingly, the Court should not exercise its discretion to 21 recharacterize the action. 22 23 Therefore, the Court will recommend that the action be dismissed and the Clerk of Court be directed to send Petitioner a blank civil rights complaint. 24 25 26 27 28 ORDER The Court ORDERS that the Clerk of Court is DIRECTED to assign a District Judge to the case. RECOMMENDATION Accordingly, the Court RECOMMENDS that the habeas corpus petition be DISMISSED 2 1 and the Clerk of Court be DIRECTED to provide Petitioner with a blank civil rights complaint 2 form. 3 This Findings and Recommendation is submitted to the United States District Court Judge 4 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 5 of the Local Rules of Practice for the United States District Court, Eastern District of California. 6 Within twenty-one days after being served with a copy, Petitioner may file written objections 7 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 8 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 9 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 10 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 13 IT IS SO ORDERED. Dated: November 11, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3