-JFM (HC) Perez v. McDonald et al, No. 2:2010cv01984 - Document 28 (E.D. Cal. 2011)
Court Description: ORDER signed by Judge Morrison C. England, Jr on 4/6/11 ORDERING respondent's motion to dismiss 17 GRANTED and the Court DECLINES to follow the Magistrate Judge's Findings and Recommendations 23 ; and petitioner may file a second amended complaint pursuant to 28:1983 within 20 days of the electronic filing of this order. (Carlos, K)
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-JFM (HC) Perez v. McDonald et al Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FERNANDO AVILA PEREZ, JR., 12 Petitioner, 13 14 No. 2:10-cv-01984-MCE-JFM v. MEMORANDUM AND ORDER MCDONALD, et al., 15 Respondent. 16 ----oo0oo---- 17 18 Through this petition for a writ of habeas corpus, Fernando 19 Avila Perez, Jr. (“Petitioner”) challenges his validation as a 20 member of the Northern Structure prison gang and subsequent 21 transfer to administrative segregation. 22 Respondent moved to dismiss for failure to state a cognizable 23 claim for habeas corpus relief pursuant to 28 U.S.C. § 2254(d). 24 (ECF No. 17.) 25 to the case issued findings and recommendations, concluding that 26 Respondent’s motion to dismiss should be denied. 27 Respondent filed objections to the Magistrate Judge’s Findings. 28 /// On September 22, 2010, On January 14, 2011, the Magistrate Judge assigned (ECF No. 23.) 1 Dockets.Justia.com 1 Upon de novo review, the Court concludes that the findings and 2 recommendations should not be adopted, and Respondent’s motion to 3 dismiss should be granted. 4 Petitioner is currently in the custody of the State of 5 California at High Desert State Prison. 6 instant habeas petition challenges Petitioner’s validation as an 7 associate of the Northern Structure prison gang. 8 result of his gang validation, Petitioner is currently in 9 administrative segregation, and has been endorsed for transfer to (Id.) The As a 10 a Secure Housing Unit. 11 gang validation deprived him of due process because it was not 12 supported by sufficient evidence. 13 (Id. 6-7.) (Pet’r’s Compl. 1.) Petitioner claims that his (Id.) However, the Court lacks jurisdiction to consider the merits 14 of the instant petition because Petitioner challenges only the 15 conditions of his confinement. 16 to consider an application for a writ of habeas corpus on behalf 17 of a prisoner in custody pursuant to a judgement of a state court 18 only on the ground that said custody violates federal law. 19 28 U.S.C. § 2254. 20 has jurisdiction over the instant petition relying on Bostic v. 21 Carlson, 884 F.2d 1267 (9th Cir. 1989). 22 corpus jurisdiction is also available for a prisoner’s claims 23 that he has been subjected to greater restrictions of his 24 liberty, such as disciplinary segregation, without due process of 25 law.” 26 /// 27 /// 28 /// A district court has jurisdiction The Magistrate Judge determined that the Court Id. at 1268. 2 Bostic held that “habeas 1 However, Bostic was decided in the context of a habeas 2 petition made pursuant to 28 U.S.C. § 2241, and did not involve a 3 state prisoner. 4 Bostic and involved a state prisoner, the 9th Circuit held that 5 “habeas jurisdiction is absent, and a § 1983 action proper, where 6 a successful challenge to a prison condition will not necessarily 7 shorten the prisoner’s sentence.” 8 850, 859 (9th Cir. 2003). 9 1024, 1030 n.4 (9th Cir. 2004) (implicitly upholding the 10 conclusion of Ramirez, that habeas corpus jurisdiction is 11 unavailable for a state prisoner’s challenge to internal 12 disciplinary procedures and resulting administrative 13 segregation). 14 Further, in Ramirez v. Galaza, which followed Ramirez v. Galaza, 334 F.3d See also Docken v. Chase, 393 F.3d Because the instant petition challenges only internal 15 disciplinary procedures and Petitioner’s resulting administrative 16 segregation, the Court does not have habeas corpus jurisdiction. 17 The proper vehicle for a challenge to the conditions of 18 imprisonment is a civil rights action pursuant to 28 U.S.C. 19 § 1983. 20 should be granted leave to amend his complaint to reflect an 21 intent to proceed with a civil rights action pursuant to § 1983. 22 See Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987). 23 Ramirez, 334 F.3d at 859. As a result, Petitioner Based on the foregoing, Respondent’s Motion to Dismiss (ECF 24 No. 17) is hereby GRANTED and the Court declines to follow the 25 Magistrate Judge’s Findings and Recommendations (ECF No. 23). 26 Petitioner may file an amended complaint seeking redress, 27 pursuant to 28 U.S.C. § 1983, within twenty (20) days of the 28 electronic filing of this order. 3 1 If no amended complaint is filed within said twenty (20)-day 2 period, without further notice, Petitioner’s complaint will be 3 dismissed without leave to amend. 4 5 IT IS SO ORDERED. Dated: April 6, 2011 6 7 8 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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