(HC) Schroeder v. CDCR, No. 2:2015cv01362 - Document 4 (E.D. Cal. 2015)

Court Description: ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/8/15 ORDERING that Petitioners request for leave to proceed in forma pauperis (ECF No. 2 ) is GRANTED; and the Clerk of Court is directed to assign a district judge to this action. It is RECOMMENDED that the petition be summarily dismissed pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254. Randomly assigned and referred to Judge Troy L. Nunley; 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 COREI LEE SCHROEDER, 12 Petitioner, 13 14 15 v. No. 2:15-cv-1362 CKD P ORDER AND CDCR, FINDINGS AND RECOMMENDATIONS Respondent. 16 17 18 Petitioner is a state prisoner proceeding pro se who has requested authority pursuant to 28 19 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local 20 Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 22 23 24 25 Petitioner has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Petitioner alleges that when he was transferred between institutions in November 2014, prison officials lost all his personal belongings and have not replaced them. A habeas corpus petition is the correct method for a prisoner to challenge the legality or 26 duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir.1991) (quoting Preiser v. 27 Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976 28 1 1 Adoption. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for 2 a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 3 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Habeas 4 Rule 1, 1976 Adoption. Here, as petitioner’s property claim does not relate to or affect the 5 duration of his confinement, it is not properly brought within this federal habeas action and is 6 subject to dismissal. 7 Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for 8 summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and 9 any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” For the 10 foregoing reasons, and because it does not appear that the petition can be cured by amendment, 11 the petition will be summarily dismissed pursuant to Rule 4. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 2) is granted; and 14 2. The Clerk of Court is directed to assign a district judge to this action. 15 IT IS HEREBY RECOMMENDED that the petition be summarily dismissed pursuant to 16 Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 22 objections shall be served and filed within fourteen days after service of the objections. The 23 parties are advised that failure to file objections within the specified time may waive the right to 24 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 Dated: July 8, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 26 27 28 2 / schr1362.R4_fr 2

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