1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN JOHN CRAIG, No. 2:21-cv-1226 TLN KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 JOHN DAGOSTINI, 15 Respondent. 16 17 Petitioner, a county prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Petitioner paid the filing fee. As discussed below, the petition 19 should be dismissed without prejudice. 20 Governing Standards 21 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 22 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 23 petitioner is not entitled to relief in the district court. . . .” Id. 24 The Petition 25 Petitioner alleges the following. In ground one, unidentified parties are circumventing 26 U.S. Mail, legal mail, confidential privileges, and violating Title 15 standards and U.S. Postal 27 Service regulations. (ECF No. 1 at 3.) In ground two, certain correctional officers hold petitioner 28 incommunicado, and deny petitioner his one hour out of cell time, which denies him showers, 1 phone calls, and contact with other inmates. Further, he alleges that his competency evaluation 2 by Judge Ralphs has resulted in petitioner’s placement in ad seg disciplinary housing which 3 requires yellow clothing instead of orange, which petitioner contends is institutionalized 4 discrimination. (ECF No. 1 at 4.) 5 Federal Habeas Corpus vs. Civil Rights 6 As a general rule, a claim that challenges the fact or duration of a prisoner’s confinement 7 should be addressed by filing a habeas corpus petition, while a claim that challenges the 8 conditions of confinement should be addressed by filing a civil rights action. Muhammad v. 9 Close, 540 U.S. 749, 750 (2004) (per curiam). Prisoners cannot obtain release from prison by 10 filing a § 1983 action. On the other hand, prisoners cannot obtain injunctive relief or damages 11 based on conditions of confinement claims by filing a habeas petition. 12 Discussion 13 A federal petition for habeas corpus under 28 U.S.C. § 2254 involves an attack on a 14 prisoner’s conviction for which he is being held in custody, and petitioner must seek release from 15 his conviction because of a violation of the Constitution of the United States, or in the rare case, a 16 federal law, which applies to the state proceedings. While the court may address ancillary matters 17 to the petition, it is necessary that petitioner provide the basis for habeas jurisdiction in his 18 petition. 19 Here, petitioner’s claims are more appropriately raised in a civil rights complaint under 42 20 U.S.C. § 1983 because such claims implicate petitioner’s current conditions of confinement rather 21 than challenging his underlying criminal conviction. 22 In some circumstances, a district court may convert an improperly filed habeas petition 23 into a civil rights complaint. See Nettles v. Grounds, 830 F.3d 922, 935-36 (9th Cir. 2016) (en 24 banc). “If the complaint is amenable to conversion on its face, meaning that it names the correct 25 defendants and seeks the correct relief, the court may re-characterize the petition so long as it 26 warns the pro se litigant of the consequences of the conversion and provides an opportunity for 27 the litigant to withdraw or amend his or her complaint.” Id. at 936 (quoting Glaus v. Anderson, 28 408 F.3d 382 (7th Cir. 2005)). 1 Here, petitioner has not named the appropriate parties responsible for the claims raised in 2 the instant petition. Petitioner names only El Dorado County and its sheriff as respondent, and 3 there is no indication that either was involved in the factual allegations pled. Fed. R. Civ. P. 10. 4 Second, if petitioner chooses to proceed with a civil rights action, he will be required to 5 pay the court’s $350.00 filing fee, even if granted leave to proceed in forma pauperis, although he 6 would be allowed to pay it in installments. See 28 U.S.C. §§ 1914(a), 1915(a). Moreover, if a 7 prisoner files a civil rights complaint that is later dismissed as frivolous or for failure to state a 8 cognizable civil rights claim, the prisoner sustains a strike under 28 U.S.C. § 1915(g). Once a 9 prisoner sustains three strikes under § 1915, the prisoner may be barred from bringing future civil 10 rights actions unless the prisoner meets a narrow exception under § 1915(g). 11 Finally, under the Prison Litigation Reform Act (“PLRA”), petitioner cannot pursue a 12 claim in this court that he has not exhausted through an inmate appeal procedure that is available 13 at his place of incarceration. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect 14 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in 15 any jail, prison, or other correctional facility until such administrative remedies as are available 16 are exhausted.”). Although exhaustion is not required “when circumstances render administrative 17 remedies ‘effectively unavailable,’” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (citation 18 omitted), the Ninth Circuit requires “a good-faith effort on the part of inmates to exhaust a 19 prison’s administrative remedies as a prerequisite to finding remedies effectively unavailable,” 20 Albino v. Baca, 697 F.3d 1023, 1035 (9th Cir. 2012). The exhaustion requirement accords 21 prisoners the possibility of obtaining more immediate and effective relief. The requirement 22 provides an opportunity for correctional officials to address complaints internally, thereby 23 deterring frivolous lawsuits and creating an administrative record should the matter later proceed 24 to court. See Porter v. Nussle, 534 U.S. 516, 525 (2002). “The primary purpose of a grievance . . 25 . is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for 26 litigation.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). 27 For all of the above reasons, it is not appropriate to convert this action to a civil rights 28 action. 1 || Leave to Amend 2 The undersigned has considered whether to recommend granting petitioner leave to 3 || amend. However, because it is inappropriate to convert this action to a civil rights action, the 4 || undersigned declines to grant petitioner leave to file an amended civil rights complaint in this 5 || action. 6 Accordingly, IT IS HEREBY ORDERED that the October 8, 2021 findings and 7 || recommendations (ECF No. 9) are vacated; and 8 Further, IT IS RECOMMENDED that petitioner’s application for a writ of habeas corpus 9 || be dismissed without prejudice. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after 12 || being served with these findings and recommendations, petitioner may file written objections 13 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 14 | and Recommendations.” If petitioner files objections, he shall also address whether a certificate 15 || of appealability should issue and, if so, why and as to which issues. A certificate of appealability 16 || may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the 17 | denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). Petitioner is advised that failure to file 18 || objections within the specified time may waive the right to appeal the District Court’s order. 19 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 20 | Dated: November 4, 2021 Aectl Aharon 22 KENDALL J. NE lerail226.56 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28