(HC) Reyes v. Cisneros ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 OSBALDO REYES, No. 1:22-cv-01490-SKO (HC) 12 Petitioner, ORDER DISMISSING PETITION WITH LEAVE TO FILE FIRST AMENDED 13 v. PETITION 14 THERESA CISNEROS, [THIRTY DAY DEADLINE] 15 Respondent. 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 November 19 18, 2022. The petition does not challenge the underlying conviction; rather, it challenges 20 Petitioner’s gang validation by the California Department of Corrections and Rehabilitation 21 (“CDCR”). For reasons that follow, the Court finds it lacks habeas jurisdiction to consider the 22 claims. However, Petitioner will be granted leave to file an amended petition to present a 23 cognizable claim. 24 DISCUSSION 25 A. Preliminary Review of Petition 26 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 27 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 28 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 1 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 2 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 3 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 4 2001). 5 B. Prison Gang Validation 6 Petitioner contends that the CDCR violated his constitutional rights when it validated him 7 as a member of the Mexican Mafia gang without “some evidence.” 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. 13 In Nettles v. Grounds, 830 F.3d 922, 1006 (9th Cir. 2016), the Ninth Circuit held that a 14 district court has jurisdiction to consider a prison gang validation determination if success on the 15 merits will result in a quantum change in the level of custody. In Nettles, success on the 16 petitioner’s claim would result in his immediate release from the SHU to the general prison 17 population. Id. The Ninth Circuit found that the petitioner’s release from the SHU to general 18 population “can fairly be described as a quantum change in the level of custody.” Id. (quoting 19 Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991)). 20 In this case, Petitioner complains that he has been wrongfully classified as a gang 21 member. However, he does not claim that this determination resulted in any change in the level 22 of custody. Thus, the petition only challenges the conditions of his confinement and does not 23 present a habeas claim. However, it is possible that Petitioner has merely neglected to state the 24 relevant facts. For this reason, the Court will dismiss the petition with leave to file an amended 25 petition. 26 ORDER 27 Accordingly, IT IS HEREBY ORDERED: 28 1) The Clerk of Court is DIRECTED to provide Petitioner a blank form for filing a habeas 1 petition; 2 2) The petition is DISMISSED with leave to file an amended petition; and 3 3) Petitioner MAY FILE an amended petition within thirty (30) days of the date of service 4 of this order. The petition should be titled “First Amended Petition” and must reference the 5 instant case number. If, on the other hand, the prison gang validation determination did not result 6 in any change in the level of custody, Petitioner MAY FILE a motion to voluntarily dismiss the 7 petition within thirty (30) days of the date of service of this order. 8 Petitioner is advised that failure to comply with this order will result in a recommendation 9 that the action be dismissed. 10 IT IS SO ORDERED. 11 12 Dated: November 28, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28