(HC) Cruz v. Dickinson, No. 2:2009cv02046 - Document 6 (E.D. Cal. 2009)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/30/09 ORDERING that Petitioners 2 motion to proceed in forma pauperis is GRANTED; and Clerk is directed to randomly assign a United States District Judge to this action; RECOMMENDING that petitioners 1 petition for writ of habeas corpus be dismissed without prejudice; and this action be closed. Randomly assigned and referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 20 days.(Dillon, M)

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(HC) Cruz v. Dickinson Doc. 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ALBERT CRUZ, 11 12 13 Petitioner, No. CIV S-09-2046 DAD P vs. KATHLEEN DICKINSON, Warden, 14 ORDER AND Respondent. FINDINGS AND RECOMMENDATIONS 15 / 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma 18 pauperis. 19 Examination of the in forma pauperis application reveals that petitioner is unable 20 to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be 21 granted. See 28 U.S.C. § 1915(a). 22 23 PRELIMINARY SCREENING Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 24 dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to 25 it that the petitioner is not entitled to relief in the district court. . . .” Rule 4, Rules Governing 26 Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may 1 Dockets.Justia.com 1 dismiss a petition for writ of habeas corpus at several stages of a case, including “summary 2 dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the 3 answer and petition are considered; or a dismissal after consideration of the pleadings and an 4 expanded record.” 5 BACKGROUND 6 On July 24, 2009, petitioner commenced this action by filing a petition for writ of 7 habeas corpus. Therein, petitioner alleges that he is not receiving proper mental health or 8 substance abuse treatment at California Medical Facility. Plaintiff alleges that if he does not 9 receive proper treatment he will “use” again when he is released in 2010. Plaintiff further alleges 10 that he believes that he will commit additional crimes to support his drug-use habit if he does not 11 receive proper treatment while incarcerated. (Pet. at 5 & Attach.) 12 ANALYSIS 13 The instant petition should be dismissed because petitioner has failed to state a 14 cognizable claim for federal habeas relief. Petitioner is advised that habeas corpus proceedings 15 are the proper mechanism for a prisoner seeking to challenge the fact or duration of his 16 confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, petitioner does not 17 challenge the legality of his conviction, a parole proceeding, or other adjudication that has led to 18 his current incarceration. Rather, petitioner challenges the conditions of his confinement. 19 Petitioner is advised that a civil rights action, not a habeas corpus proceeding, is the proper 20 mechanism for a prisoner seeking to challenge the conditions of his confinement. 42 U.S.C. 21 § 1983; Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Accordingly, petitioner is not entitled 22 to habeas corpus relief, and this habeas action should be dismissed without prejudice to filing a 23 civil rights action. 24 ///// 25 ///// 26 ///// 2 1 CONCLUSION 2 IT IS HEREBY ORDERED: 3 1. Petitioner’s July 24, 2009 motion to proceed in forma pauperis (Doc. No. 2) is 4 granted; and 5 6 2. The Clerk of the Court is directed to randomly assign a United States District Judge to this action. 7 IT IS HEREBY RECOMMENDED that: 8 1. Petitioner’s July 24, 2009 petition for writ of habeas corpus (Doc. No. 1) be 9 dismissed without prejudice to filing a civil rights action; and 10 2. This action be closed. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 13 days after being served with these findings and recommendations, petitioner may file written 14 objections with the court. The document should be captioned “Objections to Magistrate Judge's 15 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 16 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 17 F.2d 1153 (9th Cir. 1991). 18 DATED: July 30, 2009. 19 20 21 22 DAD:9 cruz2046.156 23 24 25 26 3

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