Green v. Lewis
Filing
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ORDER DISMISSING 1 Petition for Writ of Habeas Corpus for Failing to State Cognizable Claim; ORDER DIRECTING Clerk to send Petitioner a blank Civil Rights Complaint Form; ORDERED Clerk of the Court to enter Judgment; ORDER ***DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY***, signed by Magistrate Judge Michael J. Seng on 11/28/2011. CASE CLOSED (Attachments: # 1 1983 Instructions and Complaint Form)(Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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IRA GREEN,
1:11-cv-01359 MJS (HC)
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Petitioner,
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS FOR FAILING
TO STATE COGNIZABLE CLAIM
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v.
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[Doc. 1]
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MARSHALL S. LEWIS, M.D.,
Respondent.
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/
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
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corpus under the authority of 28 U.S.C. § 2254. The parties have consented to the
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jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1) and
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Local Rule 305(b).
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Petitioner filed the instant petition for writ of habeas corpus on August 15, 2011.
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(Pet., ECF No. 1.) Despite labeling the filing as a petition for writ of habeas corpus,
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Petitioner states that the petition is “a medical malpractice civil suit” based on the
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defendant’s failure to administer post-operative pain medication. (Id. at 28.) It appears from
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Petitioner’s filings that he brought a civil complaint in state court based on the same issues,
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and it was dismissed on summary judgment.
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I.
DISCUSSION
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A.
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Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
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Procedural Grounds for Summary Dismissal
If it plainly appears from the petition and any attached exhibits that the
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petitioner is not entitled to relief in the district court, the judge must dismiss
the petition and direct the clerk to notify the petitioner.
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The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a
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petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the
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respondent’s motion to dismiss, or after an answer to the petition has been filed. A petition
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for habeas corpus should not be dismissed without leave to amend unless it appears that
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no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440
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F.2d 13, 14 (9th Cir. 1971).
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B.
Failure to State Cognizable Claim
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The instant petition must be dismissed because it does not challenge the fact or
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duration of Petitioner’s confinement.
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A federal court may only grant a petition for writ of habeas corpus if the petitioner
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can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a).
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A habeas corpus petition is the correct method for a prisoner to challenge the “legality or
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duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting,
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Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of
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the Rules Governing Section 2254 Cases.
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In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method
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for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500
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U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory
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Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
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Petitioner’s claims do not implicate the fact or duration of his confinement. Petitioner
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appears to seek compensation for his loss of property. (Pet.) Petitioner does not challenge
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his conviction or sentence or seek earlier release from confinement. Petitioner’s claims are
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not cognizable grounds for federal habeas corpus relief and must be dismissed. Should
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Petitioner wish to pursue his claims, he must do so by way of a civil rights complaint. The
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Court expresses no opinion as to the merits of such a civil rights complaint.
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As it does not appear possible that the deficiencies identified herein can be cured
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by amending the complaint, Petitioner is not entitled to leave to amend prior to dismissal
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of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en
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banc).
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In an appropriate case a habeas petition may be construed as a Section 1983
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complaint. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418
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(1971). Although the Court may construe a habeas petition as a civil rights action, it is not
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required to do so. Since the time when the Wilwording case was decided there have been
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significant changes in the law. For instance, the filing fee for a habeas petition is five
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dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For civil
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rights cases, however, the fee is now $350 and under the Prisoner Litigation Reform Act
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the prisoner is required to pay it, even if granted in forma pauperis status, by way of
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deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A
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prisoner who might be willing to file a habeas petition for which he or she would not have
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to pay a filing fee might feel otherwise about a civil rights complaint for which the $350 fee
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would be deducted from income to his or her prisoner account. Also, a civil rights complaint
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which is dismissed as malicious, frivolous, or for failure to state a claim would count as a
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"strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases.
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In view of these potential pitfalls for Petitioner if the petition were construed as a civil
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rights complaint, this case is DISMISSED without prejudice to Petitioner to present the
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claims in a civil rights complaint pursuant to 42 U.S.C. § 1983, rather than a habeas
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petition, which will be assigned a separate civil number. The Clerk of Court shall send
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Petitioner a blank civil rights complaint form along with a copy of this Order.
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C.
Certificate of Appealability
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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to
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appeal a district court’s denial of his petition, and an appeal is only allowed in certain
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circumstances. Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute
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in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which
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provides as follows:
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(a) In a habeas corpus proceeding or a proceeding under section
2255 before a district judge, the final order shall be subject to review, on
appeal, by the court of appeals for the circuit in which the proceeding is
held.
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(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to another district or
place for commitment or trial a person charged with a criminal offense
against the United States, or to test the validity of such person’s detention
pending removal proceedings.
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(c)
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(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from–
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(A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of process
issued by a State court; or
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(B) the final order in a proceeding under section 2255.
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(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of the
denial of a constitutional right.
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(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).
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If a court denies a petitioner’s petition, the court may only issue a certificate of
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appealability “if jurists of reason could disagree with the district court’s resolution of his
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constitutional claims or that jurists could conclude the issues presented are adequate to
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deserve encouragement to proceed further.” Miller-El, 123 S.Ct. at 1034; Slack v.
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McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the
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merits of his case, he must demonstrate “something more than the absence of frivolity or
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the existence of mere good faith on his . . . part.” Miller-El, 123 S.Ct. at 1040.
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In the present case, the Court finds that reasonable jurists would not find debatable
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or wrong the Court’s determination that Petitioner is not entitled to federal habeas corpus
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relief, nor would they find him deserving of encouragement to proceed further. Petitioner
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has not made the required substantial showing of the denial of a constitutional right.
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Accordingly, the Court hereby DECLINES to issue a certificate of appealability.
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///
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ORDER
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Accordingly, IT IS HEREBY ORDERED that:
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1. The petition for writ of habeas corpus is DISMISSED without prejudice to
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Petitioner's right to file a civil rights action pursuant to 42 U.S.C. § 1983;
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2. The Clerk of Court is DIRECTED to send Petitioner a blank civil rights complaint
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form;
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3. The Clerk of Court is DIRECTED to enter judgment; and
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4. The Court DECLINES to issue a certificate of appealability.
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IT IS SO ORDERED.
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Dated:
ci4d6
November 28, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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