(HC) Mackey v. Price ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ERNESTO MACKEY, No. 1:21-cv-00791-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 BRANDON PRICE, et al., TO SUMMARILY DISMISS PETITION 15 Respondents. [TWENTY-ONE DAY OBJECTION DEADLINE] 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed the instant petition on May 17, 19 2021. The petition does not challenge the underlying conviction; it instead presents claims 20 concerning the conditions of his confinement. For this reason, the Court will recommend it be 21 DISMISSED. 22 DISCUSSION 23 A. Preliminary Review of Petition 24 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 25 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 26 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 27 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 28 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 1 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2 2001). 3 B. Civil Rights Claims 4 Petitioner does not challenge his conviction. He contends that prison staff have 5 wrongfully determined he is not compliant in taking his medication. He further requests he be 6 immediately released from custody because he is at high risk for severe illness due to the 7 COVID-19 pandemic. 8 A habeas corpus petition is the correct method for a prisoner to challenge the “legality or 9 duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser 10 v. Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 11 1983 is the proper method for a prisoner to challenge the conditions of confinement. McCarthy v. 12 Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims 13 are not cognizable in a federal habeas action and must be dismissed. Petitioner must seek relief 14 for his complaints by way of a civil rights action. Bowman v. California, No. EDCV 19-00184 15 RGK (RAO), 2019 WL 4740538, at *1-2 (C.D. Cal. June 26, 2019) (Petitioner’s request for 16 release from custody based on jail conditions through a habeas petition was dismissed for failure 17 to state a cognizable federal claim. Claims relating to conditions of confinement are more 18 appropriately brought under 42 U.S.C. § 1983 even though petitioner also requested release from 19 custody as a form of relief). 20 In Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016), the Ninth Circuit held that a 21 district court has the discretion to construe a habeas petition as a civil rights action under § 1983. 22 However, recharacterization is appropriate only if it is “amenable to conversion on its face, 23 meaning that it names the correct defendants and seeks the correct relief,” and only after the 24 petitioner is warned of the consequences of conversion and is provided an opportunity to 25 withdraw or amend the petition. Id. Here, the Court does not find recharacterization to be 26 appropriate. Petitioner does not name the proper defendants and the claims are not amenable to 27 conversion on their face. Accordingly, the Court should not exercise its discretion to 28 recharacterize the action. 1 The Court will, therefore, recommend that the action be dismissed and the Clerk of Court 2 be directed to send Petitioner a blank civil rights complaint. 3 ORDER 4 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 5 Judge to the case. 6 RECOMMENDATION 7 Based on the foregoing, the Court HEREBY RECOMMENDS that the habeas corpus 8 petition be DISMISSED and the Clerk of Court be DIRECTED to provide Petitioner with a blank 9 civil rights complaint form. 10 This Findings and Recommendation is submitted to the United States District Court Judge 11 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 12 of the Local Rules of Practice for the United States District Court, Eastern District of California. 13 Within twenty-one (21) days after being served with a copy, Petitioner may file written objections 14 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 15 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 16 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 17 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 IT IS SO ORDERED. 19 Sheila K. Oberto 20 Dated: May 19, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28