1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS MARTINEZ, No. 1:22-cv-00805-JLT-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, AND 14 SECRETARY OF CALIFORNIA DIRECTING CLERK OF COURT TO SEND DEPARTMENT OF CORRECTIONS PETITIONER PRISONER CIVIL RIGHTS 15 AND REHABILITATION, COMPLAINT 16 Respondent. (Doc. 7) 17 18 The magistrate judge issued Findings and Recommendations, recommending the petition 19 for writ of habeas corpus be dismissed because Petitioner’s claim is not cognizable in federal 20 habeas corpus and declining to convert the petition as a civil rights complaint. (Doc. 7.) Petitioner 21 filed timely objections. (Doc. 8.) Petitioner agrees with the Findings and Recommendations that 22 he should have raised his claim in a § 1983 action. (Id. at 1.) However, Petitioner requests the 23 Court convert this matter to a Section 1983 civil rights action and “permit Petitioner to file an 24 Amended Civil Rights Complaint under

which is attached to these objections.” 25 (Id. at 2.) 26 The Court notes Petitioner did not, in fact, attach a proposed complaint to the objections. 27 However, as the magistrate judge observed, this action was not “amenable to conversion on its 28 face” by the Court. (See Doc. 7 at 1-2, citing Nettles v. Grounds,

(9th Cir. 1 | 2016), Ashcroft v. Iqbal,

(2009).) Furthermore, the exhaustion requirements 2 | for acivil rights claim differ, and the action would be subject to the three-strike rule of the Prison 3 | Litigation Reform Act. Ud. at 2.) Accordingly, the Court declines to simply convert this action 4 | to one under Section 1983, though Plaintiff may choose to initiate a civil action. 5 According to

(b)(1)(C), the Court conducted a de novo review of the case. 6 | Having carefully reviewed the entire file—including Petitioner’s objections—the Court holds the 7 | Findings and Recommendations to be supported by the record and proper analysis. Thus, the 8 | Court ORDERS: 9 1. The Findings and Recommendations issued on July 26, 2022 (Doc. 7) are 10 ADOPTED. 11 2. The Clerk of Court is DIRECTED to send Petitioner a prisoner civil rights 12 complaint form. 13 3. The petition for writ of habeas corpus is DISMISSED without prejudice to refiling 14 the claim in a civil action brought pursuant to

. 15 16 IT IS SO ORDERED. 17 | Dated: _ August 22, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28