1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVIS RUTLEDGE, No. 2:18-cv-1100 AC P 12 Petitioner, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 SUSANVILLE POLICE DEPARTMENT, 15 Respondent. 16 17 Petitioner, a county jail inmate proceeding pro se, seeks habeas relief pursuant to 28 18 U.S.C. § 2254 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 19 1915. ECF Nos. 1, 4, 6. The matter was referred to a United States Magistrate Judge pursuant to 20 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 For the reasons stated below, the court will grant petitioner’s motion to proceed in forma 22 pauperis. However, the undersigned shall also recommend that this action be summarily 23 dismissed. 24 I. IN FORMA PAUPERIS APPLICATION 25 Examination of the in forma pauperis application reveals that petitioner is unable to afford 26 the costs of suit. See ECF Nos. 4, 6. Accordingly, the application to proceed in forma pauperis 27 will be granted. See 28 U.S.C. § 1915(a). 28 //// 1 II. PETITIONER’S FACTUAL ALLEGATIONS 2 Petitioner alleges a single claim for relief against the Susanville Police Department 3 (“SPD”), the named respondent, alleging deprivation of property. See ECF No. 1 at 3. Petitioner 4 contends that after SPD officers1 stopped him in a parking lot, they questioned him and a store 5 clerk about whether a bottle of tequila he had in his possession belonged to him. See id. During 6 the encounter, petitioner was eventually arrested in relation to an unrelated matter. See id. 7 Petitioner states when he was transported from the area, the police had left this bottle of tequila 8 on the ground at the scene instead of recovering it and booking it at the station with his other 9 property. See id. The bottle of tequila was never recovered and returned to petitioner. See id. 10 Petitioner contends that the actions of the officers constituted “gross negligence,” and he 11 believes that “several laws were broken.” ECF No. 1 at 3. He states he did not seek 12 administrative review of the matter because there were “no other administrative procedures” for 13 his situation. See id. at 5. In a subsequent document petitioner has filed with the court, he caps 14 his request for damages at $30,000.00. See ECF No. 7. 15 III. STANDARD OF REVIEW 16 The court is required to screen all actions brought by prisoners who seek any form of 17 relief, including habeas relief, from a governmental entity or officer or employee of a 18 governmental entity. 28 U.S.C. § 1915A(a). Rule 4 of the Habeas Rules Governing Section 2254 19 Cases2 requires the court to summarily dismiss a habeas petition “[i]f it plainly appears from the 20 petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” 21 Rules Governing § 2254 Cases, Rule 4, 28 U.S.C.A. foll. § 2254. A person in custody pursuant to 22 the judgment of a state court can obtain a federal writ of habeas corpus “only on the ground that 23 he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 24 U.S.C. § 2254(a). The court must also dismiss a habeas petition or portion thereof if the prisoner 25 raises claims that are legally “frivolous or malicious” or that fail to state a basis on which habeas 26 1 Petitioner fails to identify the officers who questioned and arrested him. See ECF No. 1 at 1, 3. 27 2 To the extent this action should have been brought under 28 U.S.C. § 2241 (see IV. Discussion, infra), Rule 4 of the Rules Governing Section 2254 Cases may nonetheless apply. See Rules 28 Governing Section 2254 Cases, Rule 1(b), 28 U.S.C.A. foll. § 2254. 1 relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). 2 IV. DISCUSSION 3 This petition must be summarily dismissed for the following reasons. First, as a pretrial 4 detainee, petitioner cannot invoke this court’s jurisdiction under Section 2254. Habeas relief 5 under Section 2254 is only available to those who are in custody pursuant to a state court 6 judgment. See 28 U.S.C. § 2254(a) (“[A] district court shall entertain an application for a writ of 7 habeas corpus [on] behalf of a person in custody pursuant to the judgment of a State court.”). At 8 the time petitioner filed the instant pleading, he was a pretrial detainee; he was not in custody 9 because of a state court judgment. Consequently, petitioner’s claim may not be heard, nor may 10 relief be granted to him, under Section 2254. 11 A pretrial detainee seeking federal habeas relief must proceed under 28 U.S.C. § 2241. 12 See Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004) (“[T]he general grant of habeas 13 authority in [Section] 2241 is available for challenges by a state prisoner who is not in custody 14 pursuant to a state court judgment, for example, a defendant in pre-trial detention or awaiting 15 extradition.”). However, the instant petition may not be construed as seeking relief under Section 16 2241 because petitioner does not challenge the fact or duration of his detention. Habeas relief is 17 available only on grounds that a prisoner “is in custody in violation of the Constitution or law or 18 treaties of the United States.” 28 U.S.C. § 2241(c)(3). Petitioner alleges that his property rights 19 were violated in the course of his arrest, an alleged violation that even if otherwise colorable 20 would not implicate the validity of his custody and therefore is not cognizable in habeas. 21 Next, to the extent that the pleading could arguably be construed to allege civil rights 22 violations related to property deprivation, and as a result, be converted to a civil rights action by 23 the court, the undersigned declines to do so. The conversion of a habeas petition into a civil 24 rights complaint may only be done if the petition is amenable to the conversion on its face. See 25 Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016). This means the habeas pleading must 26 name the correct defendants and seek the correct relief. See id. 27 In the petition, petitioner names the Susanville Police Department as the responding party, 28 and he speaks only generally of an “arresting officer” and possibly a second officer. See ECF No. 1 1 at 1-3. The civil rights statute provides by its terms for individual liability. See 42 U.S.C. § 2 1983 (“Every person” who, under color of state law, violates the constitutional rights of an 3 individual shall be liable). Even if petitioner could amend his pleading to name the individual 4 officers who deprived him of his property, the facts alleged in the complaint would not establish a 5 colorable claim that petitioner’s constitutional rights were infringed. Petitioner alleges that the 6 officers’ action of leaving the bottle of tequila in the parking lot constituted “gross negligence.” 7 See ECF No. 1 at 3. The Due Process Clause is not implicated by a negligent act of an official 8 causing unintended loss or injury to life, liberty or property. See Daniels v. Williams, 474 U.S. 9 327, 328 (1986). In addition, petitioner was told that the jail had a policy of not storing property 10 for inmates if the property was alcohol. See ECF No. 1 at 3. There is no plausible basis for an 11 argument that such a policy is unconstitutional. See Lovell v. Poway Unified Sch. Dist., 90 F.3d 12 367, 370 (9th Cir. 1996) (“Section 1983 limits a federal court’s analysis to the deprivation of 13 rights secured by the federal ‘Constitution and laws.’”). Moreover, any deprivation was patently 14 de minimus and cannot support a due process claim. 15 For these reasons, the undersigned finds that the petition is not cognizable on federal 16 habeas review, and it declines to convert the petition to a Section 1983 complaint. Instead, the 17 undersigned will recommend that this action be summarily dismissed for failure to state a claim 18 upon which relief may be granted. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 6) is GRANTED; 21 2. The Clerk of Court shall randomly assign a District Court Judge to this action, and 22 3. The Clerk of Court is directed to serve a copy of the petition filed in this case together 23 with a copy of these findings and recommendations on the Attorney General of the State of 24 California. 25 IT IS FURTHER RECOMMENDED that: 26 1. Petitioner's application for a writ of habeas corpus be summarily DISMISSED for 27 failure to state a claim upon which relief may be granted. See Rules Governing § 2254 Cases, 28 Rule 4, 28 U.S.C.A. foll. § 2254; 28 U.S.C. § 1915(e)(2)(B)(ii), and 1 2. The court DECLINE to issue the certificate of appealability referenced in 28 U.S.C. 8 2 |} 2253. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 || after being served with these findings and recommendations, petitioner may file written 6 || objections with the court. Such a document should be captioned “Objections to Magistrate 7 || Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 8 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 9 | Yist, 951 F.2d 1153 (9th Cir. 1991). 10 | DATED: August 13, 2019 ~ ththien— Chane

ALLISON CLAIRE

12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28