Opinion
No. CIV S-08-2219 DAD P.
November 4, 2008
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus, filed on October 20, 2008. The court had previously informed petitioner that a habeas action must challenge the fact or duration of his custody.See Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990). Petitioner was also informed at that time that if he intended to challenge a condition of his confinement, he needed to file a civil rights action. Rather than file a civil rights action, petitioner instead has filed an amended petition for writ of habeas corpus.
In his amended petition, petitioner again does not challenge his conviction or a disciplinary action. Rather, he indicates that he intends to file a tort claim action in the "Court of Claims." Petitioner has filed several other documents with his amended petition, including a document styled, "Intention To File A Tort Claim." In that document, petitioner indicates that he intends to pursue a negligence claim against a correctional officer at the Sierra Conservation Center and that he will seek $5,000 in damages.
The court is required to examine a petition for federal habeas corpus relief before requiring a response to it. See Rules 3 4, Rules Governing § 2254 Cases. "If it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal. . . ." Rule 4, Rules Governing § 2254 Cases. Rule 4 "`explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated.'" O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983)). Here, petitioner does not challenge his conviction or some other adverse action that would lengthen the duration of his confinement. Therefore, this action should be summarily dismissed.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a United States District Judge to this action.
Also, IT IS HEREBY RECOMMENDED that this action be summarily dismissed because it plainly appears from the face of the amended petition that petitioner is not seeking habeas relief pursuant to 28 U.S.C. § 2254.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).