(HC) Dailey v. State of California ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES EDWARD DAILEY, No. 1:23-cv-00389-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 STATE OF CALIFORNIA, TO SUMMARILY DISMISS PETITION 15 Respondent. [THIRTY DAY OBJECTION DEADLINE] 16 17 Petitioner is a state parolee 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 March 16, 19 2023. The petition is deficient for the following reasons: 1) The petition fails to name a proper 20 respondent; 2) The claims are not cognizable; and 3) The claims are moot. For these reasons, the 21 Court will recommend the petition be 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. Improper Respondent 4 Petitioner names State of California as Respondent. A petitioner seeking habeas corpus 5 relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the 6 respondent to the petition. Rule 2 (a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. 7 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 8 (9th Cir. 1994). Generally, the person having custody of an incarcerated petitioner is the warden 9 of the prison in which the petitioner is incarcerated because the warden has "day-to-day control 10 over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also 11 Stanley, 21 F.3d at 360. Where a petitioner is on probation or parole, the proper respondent is his 12 probation or parole officer and the official in charge of the parole or probation agency or state 13 correctional agency. Id. 14 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition 15 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 16 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd 17 Cir. 1976). Petitioner would normally be given the opportunity to cure this defect by amending 18 the petition to name a proper respondent, but in this case, the petition also suffers from other 19 uncurable deficiencies. Therefore, dismissal is warranted. 20 C. Civil Rights Claims 21 Petitioner does not challenge his conviction. He instead contends that prison staff, while 22 he was incarcerated, wrongfully confiscated a magazine. He states that a copy of News China 23 magazine was determined to be contraband because it met sexually explicit criteria, and states the 24 magazine was geared toward investigative reporting and was erroneously categorized. 25 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 27 v. Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 28 1983 is the proper method for a prisoner to challenge the conditions of confinement. McCarthy v. 1 Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s claims concern the 2 conditions of his previous confinement. The claims are not cognizable in a federal habeas action 3 and must be dismissed. Petitioner must seek relief for his complaints by way of a civil rights 4 action. 5 In Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016), the Ninth Circuit held that a 6 district court has the discretion to construe a habeas petition as a civil rights action under § 1983. 7 Recharacterization is appropriate only if it is “amenable to conversion on its face, meaning that it 8 names the correct defendants and seeks the correct relief,” and only after the petitioner is warned 9 of the consequences of conversion and is provided an opportunity to withdraw or amend the 10 petition. Id. Here, the Court finds recharacterization to be appropriate. Petitioner does not name 11 the proper defendants and the claims are not amenable to conversion on their face. Accordingly, 12 the Court should not exercise its discretion to recharacterize the action, and the petition should be 13 dismissed. 14 D. Mootness 15 The case or controversy requirement of Article III of the Federal Constitution deprives the 16 Court of jurisdiction to hear moot cases. Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 17 (1983); NAACP., Western Region v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir. 1984). A 18 case becomes moot if the “the issues presented are no longer ‘live’ or the parties lack a legally 19 cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1984). The Federal 20 Court is “without power to decide questions that cannot affect the rights of the litigants before 21 them.” North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam) (quoting Aetna Life Ins. 22 Co. v. Hayworth, 300 U.S. 227, 240-241 (1937)). When a prisoner is released from custody, any 23 habeas petition challenging continued detention becomes moot. Fender v. U.S. Bureau of Prisons, 24 846 F.2d 550, 555 (9th Cir. 1988). 25 Petitioner is no longer incarcerated but has been released on parole. Petitioner no longer 26 has an interest in the outcome of this case because prison authorities are no longer monitoring his 27 mail. He can freely obtain the magazine at issue. Thus, the claims are moot and the petition 28 should be dismissed. 1 ORDER 2 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 3 Judge to the case. 4 RECOMMENDATION 5 Accordingly, the Court HEREBY RECOMMENDS that the habeas corpus petition be 6 DISMISSED. 7 This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 9 of the Local Rules of Practice for the United States District Court, Eastern District of California. 10 Within thirty (30) days after being served with a copy, Petitioner may file written objections with 11 the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 12 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 13 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 IT IS SO ORDERED. 16 17 Dated: March 20, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28