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Wishart v. Adler

United States District Court, Ninth Circuit, California, E.D. California
Feb 17, 2010
1:09-cv-01118 LJO YNP [DLB] (HC) (E.D. Cal. Feb. 17, 2010)

Opinion


DONALD E. WISHART, Petitioner, v. NEIL H. ADLER, Respondent. No. 1:09-cv-01118 LJO YNP [DLB] (HC). United States District Court, E.D. California. February 17, 2010

          FINDINGS AND RECOMMENDATION REGARDING PETITIONER'S MOTION FOR TEMPORARY RESTRAINING ORDER [Doc. #3]

          DENNIS L. BECK, Magistrate Judge.

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 22541.

         On July 16, 2009, Petitioner filed a motion requesting temporary restraining order directing the warden of his institution to relinquish his legal property. (Doc. #3.)

         DISCUSSION

         Petitioner is informed that claims concerning the conditions of one's confinement are properly raised in a civil rights complaint filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens action provides petitioners with a remedy for violation of civil rights by federal actors. C.f., Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (challenges to conditions of confinement by state prisoners should be presented in a 42 U.S.C. § 1983 civil rights action rather than a habeas corpus petition).

         In this case, Petitioner seeks injunctive relief compelling prison officials to relinquish property. This claim is not properly brought in a petition for writ of habeas corpus. Petitioner's complaint clearly concerns the conditions of his confinement and thus is appropriately raised in a civil rights action. Accordingly, the Court will recommend that Petitioner's motion be dismissed.

         RECOMMENDATION

         Accordingly, the Court RECOMMENDS that Petitioner's motion for an order directing the warden to relinquish stored property be DISMISSED.

         This Findings and Recommendation is submitted to the Honorable Lawrence J. O'Neill, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy of this Findings and Recommendation, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the Objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the Objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

         IT IS SO ORDERED.


Summaries of

Wishart v. Adler

United States District Court, Ninth Circuit, California, E.D. California
Feb 17, 2010
1:09-cv-01118 LJO YNP [DLB] (HC) (E.D. Cal. Feb. 17, 2010)
Case details for

Wishart v. Adler

Case Details

Full title:DONALD E. WISHART, Petitioner, v. NEIL H. ADLER, Respondent.

Court:United States District Court, Ninth Circuit, California, E.D. California

Date published: Feb 17, 2010

Citations

1:09-cv-01118 LJO YNP [DLB] (HC) (E.D. Cal. Feb. 17, 2010)