(HC) Phillips v. Samuels, Jr. et al, No. 2:2014cv02664 - Document 8 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/09/15 recommending that petitioner's application for writ of habeas corpus be dismissed without prejudice to petitioner's proper pursuit of a civil rights action. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, 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 TONY PHILLIPS, 12 13 14 15 No. 2:14-cv-2664 TLN DAD P Petitioner, v. FINDINGS AND RECOMMENDATIONS CHARLES E. SAMUELS JR. et al., Respondents. 16 17 18 19 20 Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner has paid the filing fee. THE PETITION Rule 1(b) of the Rules Governing Section 2254 Cases (“Habeas Rules”) allows a district 21 court to “apply any or all of these rules” to a habeas corpus petition even if the petition is not filed 22 pursuant to § 2254. See Rule 1(b), Rules Governing Section 2254 Cases. Under Rule 4 of the 23 Habeas Rules, a district court may dismiss a petition if it “plainly appears from the face of the 24 petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district 25 court . . . .” Rule 4, Rules Governing Section 2254 Cases. See also O’Bremski v. Maass, 915 26 F.2d 418, 420 (9th Cir. 1990); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983). The 27 Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 28 habeas corpus at several stages of a case, including “summary dismissal under Rule 4; a dismissal 1 1 pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; 2 or a dismissal after consideration of the pleadings and an expanded record.” 3 THE PETITION 4 Petitioner commenced this action by filing a petition for writ of habeas corpus pursuant to 5 28 U.S.C. § 2241. Therein, petitioner complains that Chaplain Beck placed religious sanctions on 6 him that continue to date. Specifically, petitioner claims that he is not allowed to lead the Sunni 7 Community in prayer or teach religious classes. In terms of relief, petitioner requests restoration 8 of his rights to free exercise of religion. (Pet. at 1-9.) 9 10 DISCUSSION Petitioner’s application for a writ of habeas corpus fails to state a cognizable claim for 11 federal habeas corpus relief. Petitioner is advised that a habeas corpus petition under 28 U.S.C. § 12 2241 is the proper vehicle for a federal prisoner seeking to challenge the execution of his 13 sentence. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Where, as here, 14 petitioner seeks to challenge the conditions of his confinement he must file a civil rights 15 complaint rather than a habeas corpus petition. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 16 1991). In addition, because petitioner challenges actions allegedly taken by federal employees, 17 petitioner should file any civil rights action pursuant to Bivens v. Six Unknown Named Agents, 18 403 U.S. 388 (1971) and not 42 U.S.C. § 1983. 19 20 21 CONCLUSION Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for writ of habeas corpus be dismissed without prejudice to petitioner’s proper pursuit of a civil rights action. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, petitioner may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 27 failure to file objections within the specified time may waive the right to appeal the District 28 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 2 1 In any objections he elects to file, petitioner may address whether a certificate of 2 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 3 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 4 certificate of appealability when it enters a final order adverse to the applicant). 5 Dated: October 9, 2015 6 7 8 9 DAD:9 phil2664.156 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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