(HC) Eleson v. Kernan, No. 2:2018cv02074 - Document 5 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/11/18 RECOMMENDING that this action be dismissed. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Coll, A)

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(HC) Eleson v. Kernan Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC RICHARD ELESON, 12 Petitioner, 13 14 15 v. No. 2:18-cv-2074-TLN-EFB P FINDINGS AND RECOMMENDATIONS SCOTT KERNAN, Respondent. 16 17 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254. He has paid the filing fee. The court has reviewed the petition as required by 19 Rule 4 of the Rules Governing Section 2254 Proceedings, and finds that it must be summarily 20 dismissed. See Rule 4, Rules Governing § 2254 Cases (requiring summary dismissal of habeas 21 petition if, upon initial review by a judge, it plainly appears “that the petitioner is not entitled to 22 relief in the district court”). 23 Federal courts offer two main avenues to relief on complaints related to one’s 24 imprisonment – a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and a civil rights 25 complaint pursuant to 42 U.S.C. § 1983. Challenges to the validity of one’s confinement or the 26 duration of one’s confinement are properly brought in a habeas action, whereas requests for relief 27 turning on the circumstances of one’s confinement are properly brought in a § 1983 action. 28 Muhammad v. Close, 540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 Dockets.Justia.com 1 (1973)); see also 28 U.S.C. § 2254(a) (“[A] district court shall entertain an application for a writ 2 of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only 3 on the ground that he is in custody in violation of the Constitution or laws or treaties of the United 4 States.”); Advisory Committee Notes to Rule 1 of the Rules Governing § 2254 Cases. 5 In this case, petitioner complains that he had been denied a “Clear-Case Memory 6 Typewriter” without due process. ECF No. 1 at 3-4. As relief, he requests that the court order the 7 California Department of Corrections and Rehabilitation “to Notify the Approved Vendors that 8 the Swintec 2416 DM Model ‘Clear-Case’ Memory Typewriters are authorized for sale to 9 Prisoners in California . . . .” Id. at 4. This habeas action must be summarily dismissed because 10 petitioner’s claim concerns only the conditions of his confinement. It does not concern the 11 validity or duration of his confinement. 12 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 20 his objections petitioner may address whether a certificate of appealability should issue in the 21 event he files an appeal of the judgment in this case. See Rule 11, Rules Governing 22 § 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 23 final order adverse to the applicant). 24 Dated: October 11, 2018. 25 26 27 28 2

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