(HC) Arista v. Mule Creek State Prison, No. 2:2013cv02655 - Document 6 (E.D. Cal. 2014)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 2/11/14 ORDERING that petitioners motion to proceed in forma pauperis 2 is granted; Petitioners motion for appointment of counsel 3 is denied; and the Clerk of the Court is directed to randomly assign a United States District Judge to this action. It is RECOMMENDED that Petitioners application for writ of habeas corpus 1 be dismissed without prejudice to filing a civil rights action; and this action be closed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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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 ALFRED ARISTA, 12 13 14 15 No. 2:13-cv-2655 DAD P Petitioner, v. ORDER AND MULE CREEK STATE PRISON, FINDINGS AND RECOMMENDATIONS Respondent. 16 17 18 19 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford 20 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 21 28 U.S.C. § 1915(a). 22 23 PRELIMINARY SCREENING Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 24 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 25 petitioner is not entitled to relief in the district court . . . .” Rule 4, Rules Governing Section 2254 26 Cases. See also O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); Gutierrez v. Griggs, 695 27 F.2d 1195, 1198 (9th Cir. 1983). The Advisory Committee Notes to Rule 8 indicate that the court 28 may dismiss a petition for writ of habeas corpus at several stages of a case, including “summary 1 1 dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the 2 answer and petition are considered; or a dismissal after consideration of the pleadings and an 3 expanded record.” 4 BACKGROUND Petitioner commenced this federal habeas action by filing a document styled “Petition for 5 6 Review.” According to that petition, in August 2009, petitioner filed a tort action in state court 7 alleging negligence against Mule Creek State Prison and others for injuries he suffered while 8 being transported. In that case, the defendants filed a motion for summary judgment on the 9 grounds that petitioner had failed to comply with the state’s claims presentation requirement. The 10 Superior Court granted defendants’ motion for summary judgment. Petitioner unsuccessfully 11 appealed that decision to the California Court of Appeal and California Supreme Court. He now 12 seeks federal review of his civil complaint. (Pet. at 1-4 & Ex. A.) 13 ANALYSIS 14 The court will recommend that instant petition be dismissed because petitioner has failed 15 to state a cognizable claim for federal habeas relief. Petitioner is advised that habeas corpus 16 proceedings are the proper mechanism for a prisoner seeking to challenge the fact or duration of 17 his confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, petitioner does not 18 challenge the legality of his conviction, a parole proceeding, or other adjudication that has led to 19 his current incarceration. Accordingly, petitioner is not entitled to habeas corpus relief, and this 20 habeas action should be dismissed without prejudice to filing a civil rights action.1 21 OTHER MATTERS 22 Petitioner has requested the appointment of counsel. There currently exists no absolute 23 right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 24 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage 25 1 26 27 28 A civil rights action is the proper mechanism for a prisoner seeking to challenge the conditions of his confinement. See 42 U.S.C. § 1983; Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Petitioner is advised that, if he elects to file a civil rights action in this court, he will need to state a claim grounded in federal law. A negligence claim is grounded in state law. In addition, petitioner is forewarned that any constitutional claim brought under §1983 based upon events that allegedly occurred in 2008 would now appear to be barred by the applicable statute of limitations. 2 1 of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. 2 In light of the discussion above, the court does not find that the interests of justice would be 3 served by the appointment of counsel. 4 CONCLUSION 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Petitioner’s motion to proceed in forma pauperis (Doc. No. 2) is granted; 7 2. Petitioner’s motion for appointment of counsel (Doc. No. 3) is denied; and 8 3. The Clerk of the Court is directed to randomly assign a United States District Judge to 9 this action. 10 IT IS HEREBY RECOMMENDED that: 11 1. Petitioner’s application for writ of habeas corpus (Doc. No. 1) be dismissed without 12 prejudice to filing a civil rights action; and 13 2. This action be closed. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, petitioner may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 19 failure to file objections within the specified time may waive the right to appeal the District 20 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 In any objections he elects to file, petitioner may address whether a certificate of 22 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 23 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 24 certificate of appealability when it enters a final order adverse to the applicant). 25 Dated: February 11, 2014 26 27 DAD:9 aris2655.156 28 3

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