(HC) Sermeno v. Kernan et al, No. 2:2017cv01418 - Document 3 (E.D. Cal. 2017)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/1/2017 ORDERING Clerk to randomly assign a District Judge and RECOMMENDING that 1 Petition for Writ of Habeas Corpus be dismissed for lack of jurisdiction. Assigned and referred to Judge Garland E. Burrell, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
Download PDF
(HC) Sermeno v. Kernan et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY SERMENO, 12 13 14 15 No. 2:17-cv-1418 AC P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS SCOTT KERNAN, et al., Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. In his application, petitioner alleges violations of the 19 Americans with Disabilities Act and his First Amendment right to access the courts; he appears to 20 allege that these violations interfered with his ability to properly pursue his petition in Sermeno v. 21 Spearman, No. 2:14-cv-2729 DB P (E.D. Cal.). ECF No. 1. He requests that the court vacate an 22 order, enter an order allowing him thirty days to amend, grant a motion, and order “review and 23 decision” within fifteen business days of the order. Id. at 7, 21. It appears he may also be 24 seeking compensatory damages. Id. at 6. 25 Rule 4 of the Rules Governing Section 2254 Cases requires the court to summarily 26 dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that 27 the petitioner is not entitled to relief in the district court.” A habeas corpus petition is the correct 28 method for a prisoner to challenge the “legality or duration” of his confinement. Badea v. Cox, 1 Dockets.Justia.com 1 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); 28 2 U.S.C. § 2254. “[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful 3 challenge to a prison condition will not necessarily shorten the prisoner’s sentence.” Ramirez v. 4 Galaza, 334 F.3d 850, 859 (9th Cir. 2003). 5 It is clear from the allegations and the requested relief that success on the merits of the 6 petition will not necessarily spell speedier release for petitioner. The court therefore lacks 7 jurisdiction and the petition should be dismissed. To the extent petitioner appears to be seeking 8 some kind of action in Sermeno v. Spearman, No. 2:14-cv-2729 DB P (E.D. Cal.), that case is 9 still pending and he must pursue relief by filing a motion for the relief he seeks in that case. To 10 the extent petitioner is attempting to challenge his conditions of confinement, he must bring those 11 claims in a civil rights action after the inmate grievance process has been properly exhausted. 12 13 14 15 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a United States District Judge to this action. IT IS FURTHER RECOMMENDED that the petition for writ of habeas corpus be dismissed for lack of jurisdiction. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, petitioner may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 21 failure to file objections within the specified time may waive the right to appeal the District 22 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: August 1, 2017 24 25 26 27 28 2