1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHAD ANDRE CHRISTENSEN, No. 2:23-cv-2846 DJC SCR P 12 Petitioner, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 JUDGE IN THE STATE OF CALIF., 15 Respondent. 16 17 Petitioner, a county inmate proceeding pro se, has filed a petition for a writ of habeas 18 corpus and a motion to proceed in forma pauperis. Rule 4 of the Rules Governing § 2254 Cases 19 requires the court to make a preliminary review of each petition for writ of habeas corpus. Pro se 20 habeas corpus petitions should be liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21 21 (1972). The court must dismiss a petition only “[i]f it plainly appears from the petition . . . that 22 the petitioner is not entitled to relief.” Rule 4, Rules Governing § 2254 Cases; Hendricks v. 23 Vasquez, 908 F.2d 490 (9th Cir. 1990). A petition for habeas corpus should not be dismissed 24 without leave to amend unless it appears that no tenable claim for relief can be pleaded were such 25 leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curiam). 26 While the petition in the present case is difficult to decipher, it appears that petitioner is 27 alleging the jail provided him with tainted meals in violation of his Eighth Amendment rights. 28 Petitioner’s allegations are not cognizable in a federal habeas case. “[T]he essence of habeas 1 corpus is an attack by a person in custody upon the legality of that custody, and ... the traditional 2 function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 3 484 (1973). “Habeas corpus proceedings are the proper mechanism for a prisoner to challenge 4 the ‘legality or duration’ of confinement. A civil rights action ... is the proper method of 5 challenging ‘conditions of ... confinement.’” Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) 6 (quoting Preiser, 411 U.S. at 484, 498-99); see also Nelson v. Campbell, 541 U.S. 637, 643 7 (2004) (“[C]onstitutional claims that merely challenge the conditions of a prisoner's confinement, 8 whether the inmate seeks monetary or injunctive relief, fall outside of that core [of habeas corpus] 9 and may be brought pursuant to § 1983 in the first instance.”); Muhammad v. Close, 540 U.S. 10 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its 11 duration are the province of habeas corpus; requests for relief turning on circumstances of 12 confinement may be presented in a § 1983 action.”) (citation omitted). 13 Petitioner does not challenge the legality or duration of his custody. Petitioner’s “garden- 14 variety Eighth Amendment claim … is a standard civil rights claim” that “neither goes to the fact 15 of [Petitioner’s] confinement nor would require immediate release if successful” and accordingly 16 “is outside the core of habeas.” Pinson v. Carvajal, 69 F.4th 1059, 1073 (9th Cir. 2023). The 17 allegation that petitioner was given tainted meals should be raised, if at all, in a civil rights action. 18 The court may, in appropriate circumstances, convert a habeas petition to a civil rights 19 action under 42 U.S.C. § 1983. Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016). However, 20 the court is mindful of the admonition in Nettles that changes in the law ushered in by the 21 Prisoner Litigation Reform Act (“PLRA”) “may make recharacterization impossible or, if 22 possible, disadvantageous to the prisoner compared to a dismissal without prejudice of his habeas 23 corpus petition.” Id. For instance, the filing fee for a habeas petition is $5, and if leave to 24 proceed in forma pauperis is granted, the fee is forgiven. For civil rights cases, however, the fee 25 is $402, and under the PLRA the inmate is required to pay $350, even if granted in forma 26 pauperis status, by way of deductions from the inmate’s trust account. See 28 U.S.C. § 27 1915(b)(1). Petitioner here might be willing to file a habeas petition for which there would be no 28 filing fee, but might feel otherwise about a civil rights complaint for which the fee would be 1 | deducted his trust account. Rather than construe the petition as a civil rights action, this court will 2 || recommend dismissal without prejudice so that petitioner may assert claims under 42 U.S.C. § 3 | 1983 in anew case, if he chooses. 4 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma 5 || pauperis (ECF No. 11) is denied as moot; 6 Further, IT IS RECOMMENDED that this case be dismissed without prejudice to its 7 || renewal, if at all, as a civil rights action under 42 U.S.C. § 1983. 8 These findings and recommendations will be submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after 10 | being served with these findings and recommendations, petitioner may file written objections 11 | with the court. The document should be captioned “Objections to Magistrate Judge's Findings and 12 || Recommendations.” Petitioner is advised that failure to file objections within the specified time 13 | may result in waiver of the right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 14 | 1153 (Oth Cir. 1991). 15 | DATED: August 9, 2024 16 mda 17 SEAN C. RIORDAN

UNITED STATES MAGISTRATE JUDGE

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