Opinion
No. 2:14-cv-2120 KJM GGH P
09-11-2015
MILORAD OLIC, Petitioner, v. WARDEN JOE A. LIZARRAGA, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se, has filed an "emergency motion to prevent murder by CDCR Director Jeffrey Beard." He claims that his transfer to High Desert State Prison is imminent and he wants to prevent it. He asserts that last time he was transferred to that prison, an officer smashed his head into a concrete wall, causing him to lose consciousness. He fears he will be killed if he is transferred. He describes some other suspicious incidents which he claims are in retaliation for his having received an extension of time to file an opposition to respondent's motion to dismiss in this habeas action, and for court orders in this action which have allowed him to retrieve his legal property stolen by the CDCR. Petitioner states that he is separately filing a section 1983 action. The court notes that petitioner did in fact file a civil rights action on September 8, 2015 which sets forth the claims at issue in his emergency motion. See Olic v. Beard, Civ. S. No. 2:15-cv-1892 CMK.
Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 976 (1981). --------
Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a 1983 action.Muhammad v. Close, 540 U.S.749, 750, 124 S.Ct. 1303, 1304 (2004) (per curiam).
Here, the motion does not pertain to the validity or duration of petitioner's confinement which is the subject of his pending habeas petition, but to the conditions of his confinement. It is clear that by this filing petitioner makes new civil rights claims which are appropriate for his recently opened civil rights action, but are not pertinent to this habeas petition. Furthermore, the motion does not present enough support to warrant independent consideration of it in this case.
Accordingly, IT IS ORDERED that: Petitioner's "emergency motion to prevent murder by CDCR Director Jeffrey Beard" filed September 8, 2015, (ECF No. 37), is denied without prejudice to petitioner filing the same motion in his civil rights action. Dated: September 11, 2011
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Olic2120.mtn