-CMK (HC) Gibson v. Heartly, No. 2:2011cv01919 - Document 9 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/14/2011 RECOMMENDING that petitioner's 1 petition for writ of habeas corpus be summarily dismissed. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)
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-CMK (HC) Gibson v. Heartly Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY GIBSON, 12 13 14 15 Petitioner, vs. FINDINGS AND RECOMMENDATIONS JAMES HEARTLY, Respondent. 16 17 No. CIV S-11-1919-GEB-CMK-P / Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s petition for 19 a writ of habeas corpus (Doc. 1). 20 Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary 21 dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any 22 exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the 23 instant case, it is plain that petitioner is not entitled to federal habeas relief because he is 24 challenging the conditions of his confinement and not the fact or duration of his conviction or 25 sentence. Where a prisoner challenges the conditions of confinement, as opposed to the fact or 26 duration of confinement, his remedy lies in a civil rights action under 42 U.S.C. § 1983. See 1 Dockets.Justia.com 1 2 3 Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). Based on the foregoing, the undersigned recommends that petitioner’s petition for a writ of habeas corpus (Doc. 1) be summarily dismissed. 4 These findings and recommendations are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court. Responses to objections shall be filed within 14 days after service of 8 objections. Failure to file objections within the specified time may waive the right to appeal. 9 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 12 13 DATED: November 14, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 2