1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ESMELING BAHENA, No. 1:19-cv-01434-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT

TO ASSIGN DISTRICT JUDGE

13 v.

FINDINGS AND RECOMMENDATION

14 ON HABEAS CORPUS, TO SUMMARILY DISMISS PETITION 15 Respondent. [THIRTY DAY OBJECTION DEADLINE] 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 October 11, 19 2019. The petition does not challenge the underlying conviction; rather, it presents various 20 claims concerning the conditions of his confinement. For this reason, the Court will recommend it 21 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. Civil Rights Claims 4 Petitioner does not challenge his conviction. He instead contends that prison staff in the 5 administrative segregation unit have inflicted cruel and unusual punishment by failing to provide 6 him with his property to maintain his personal hygiene. (Doc. 1 at 3.) He states he was forced to 7 shower in an unclean facility without his shower shoes which caused him to contract athlete’s 8 foot. (Doc. 1 at 3.) Petitioner seeks damages in the amount of ten thousand dollars and that an 9 Officer Garcia be disciplined pursuant to Cal. Penal Code § 832.5. (Doc. 1 at 4.) 10 A habeas corpus petition is the correct method for a prisoner to challenge the “legality or 11 duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser 12 v. Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 13 1983 is the proper method for a prisoner to challenge the conditions of confinement. McCarthy v. 14 Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims 15 are not cognizable in a federal habeas action and must be dismissed. Petitioner must seek relief 16 for his complaints by way of a civil rights action. 17 In Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016), the Ninth Circuit held that a 18 district court has the discretion to construe a habeas petition as a civil rights action under § 1983. 19 However, recharacterization is appropriate only if it is “amenable to conversion on its face, 20 meaning that it names the correct defendants and seeks the correct relief,” and only after the 21 petitioner is warned of the consequences of conversion and is provided an opportunity to 22 withdraw or amend the petition. Id. Here, the Court does not find recharacterization to be 23 appropriate. Petitioner does not name the proper defendants and the claims are not amenable to 24 conversion on their face. Accordingly, the Court should not exercise its discretion to 25 recharacterize the action. 26 Therefore, the Court will recommend that the action be dismissed and the Clerk of Court 27 be directed to send Petitioner a blank civil rights complaint. 28 1 ORDER 2 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 3 Judge to the case.

RECOMMENDATION

4 Based on the foregoing, the Court HEREBY RECOMMENDS that the habeas corpus 5 petition be DISMISSED and the Clerk of Court be DIRECTED to provide Petitioner with a blank 6 civil rights complaint form. 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

16

IT IS SO ORDERED.

17 Sheila K. Oberto Dated: October 17, 2019 /s/ . 18

UNITED STATES MAGISTRATE JUDGE

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