(HC) Patrick Piceno v. Anglea ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK PICENO, ) Case No.: 1:20-cv-01154-JLT (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATION TO 14 H.B. ANGLEA, Warden, ) DISMISS PETITION 15 Respondent. ) ) [THIRTY-DAY OBJECTION DEADLINE] 16 ) 17 On August 18, 2020, the petitioner filed the instant petition for writ of habeas corpus in this 18 Court. (Doc. 1.) The petition does not challenge the underlying conviction; rather, it presents a claim 19 concerning the conditions of his confinement. For this reason, the Court will recommend it be 20 DISMISSED. 21 DISCUSSION 22 A. Preliminary Review of Petition 23 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 24 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 25 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 26 the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 27 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 28 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 1 answer to the petition has been filed. 2 B. Civil Rights Claims 3 Petitioner does not challenge his conviction. Rather, it appears that Petitioner is making 4 complaints concerning the conditions of confinement. Petitioner contends that the courts used the 5 incorrect standard in reviewing the validity of a prison regulation, which does not allow prisoners to 6 exercise without a shirt being worn. (See Doc. 1 at 5.) 7 A habeas corpus petition is the correct method for a prisoner to challenge the “legality or 8 duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. 9 Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is 10 the proper method for a prisoner to challenge the conditions of confinement. McCarthy v. Bronson, 11 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims are not 12 cognizable in a federal habeas action and must be dismissed. Petitioner must seek relief for his 13 complaints by way of a civil rights action. 14 In Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016), the Ninth Circuit held that a district 15 court has the discretion to construe a habeas petition as a civil rights action under § 1983. However, 16 recharacterization is appropriate only if it is “amenable to conversion on its face, meaning that it 17 names the correct defendants and seeks the correct relief,” and only after the petitioner is warned of 18 the consequences of conversion and is provided an opportunity to withdraw or amend the petition. Id. 19 Here, the Court does not find recharacterization to be appropriate. Petitioner does not name the proper 20 defendants and the claims are not amenable to conversion on their face. Accordingly, the Court 21 should not exercise its discretion to recharacterize the action. 22 Therefore, the Court will recommend that the action be dismissed and the Clerk of Court be 23 directed to send Petitioner a blank civil rights complaint. 24 ORDER 25 The Court DIRECTS the Clerk of Court to assign a district judge to the case. 26 RECOMMENDATION 27 Accordingly, the Court RECOMMENDS that the habeas corpus petition be DISMISSED and 28 the Clerk of Court be DIRECTED to provide Petitioner with a blank civil rights complaint form. 1 This Findings and Recommendation is submitted to the United States District Court Judge 2 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 3 Local Rules of Practice for the United States District Court, Eastern District of California. Within 4 thirty days after being served with a copy, the petitioner may file written objections with the Court. 5 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 7 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to appeal the 8 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 IT IS SO ORDERED. 11 Dated: August 21, 2020 /s/ Jennifer L. Thurston 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28