(HC) Bjorkstrand v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AARON BJORKSTRAND, No. 1:22-cv-00442-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 WARDEN, CSP/COR, TO SUMMARILY DISMISS PETITION 15 Respondent. [THIRTY DAY OBJECTION DEADLINE] 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. §2254. He filed the instant petition on April 15, 2022. The petition does 19 not challenge the underlying conviction, and instead presents various claims concerning the 20 conditions of his confinement. For this reason, the Court will recommend it be DISMISSED. 21 DISCUSSION 22 A. Preliminary Review of Petition 23 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 24 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 25 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 26 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 27 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 28 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 1 2001). 2 B. Civil Rights Claims 3 Petitioner does not challenge his conviction. Rather, he complains that prison staff have 4 inflicted cruel and unusual punishment by failing to protect him from sexual assault, violence and 5 extortion by others. (Doc. 1 at 5.) He further claims he has been denied basic mental health care. 6 (Doc. 1 at 5-6.) Last, he claims he is being denied single-cell status. (Doc. 1 at 6.) 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 9 v. Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 10 1983 is the proper method for a prisoner to challenge the conditions of confinement. McCarthy v. 11 Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims 12 are not cognizable in a federal habeas action and must be dismissed. Petitioner must seek relief 13 for his 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 15 district court has the discretion to construe a habeas petition as a civil rights action under § 1983. 16 However, recharacterization is appropriate only if it is “amenable to conversion on its face, 17 meaning that it names the correct defendants and seeks the correct relief,” and only after the 18 petitioner is warned of the consequences of conversion and is provided an opportunity to 19 withdraw or amend the petition. Id. Here, the Court does not find recharacterization to be 20 appropriate. Petitioner does not name the proper defendants and the claims are not amenable to 21 conversion on their face. Accordingly, the Court should not exercise its discretion to 22 recharacterize the action. 23 Therefore, the Court will recommend that the action be dismissed and the Clerk of Court 24 be directed to send Petitioner a blank civil rights complaint. 25 ORDER 26 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 27 Judge to the case. 28 1 RECOMMENDATION 2 Based on the foregoing, the Court HEREBY RECOMMENDS that the habeas corpus 3 petition be DISMISSED and the Clerk of Court be DIRECTED to provide Petitioner with a blank 4 civil rights complaint form. 5 This Findings and Recommendation is submitted to the United States District Court Judge 6 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 7 of the Local Rules of Practice for the United States District Court, Eastern District of California. 8 Within thirty (30) days after being served with a copy, Petitioner may file written objections with 9 the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 11 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 12 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 IT IS SO ORDERED. 14 15 Dated: April 19, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28