Feng
Filing
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ORDER REOPENING CASE; ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 8/21/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 8/21/2012)
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*E-Filed 8/21/12*
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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SAN FRANCISCO DIVISION
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XIAO S. FENG,
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Plaintiff,
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No. C 12-3161 RS (PR)
ORDER REOPENING ACTION;
v.
ORDER OF DISMISSAL
RALPH M. DIAZ,
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Defendants.
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This federal civil rights action was dismissed because plaintiff failed to pay the filing
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fee or file an application to proceed in forma pauperis (“IFP”) by the deadline. Plaintiff
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since has filed a complete IFP application (Docket No. 10), which the Court construes as
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containing a motion to reopen the action. So construed, the motion is GRANTED, and the
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action is hereby REOPENED. The Clerk shall reopen the action and terminate Docket No.
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10.
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In this case, plaintiff, a pro se state prisoner, has improperly filed this action as a civil
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rights action pursuant to 42 U.S.C. § 1983. Specifically, by way of this action, plaintiff
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challenges the validity of his state conviction. Any claim by a prisoner attacking the validity
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No. C 12-3161 RS (PR)
ORDER OF DISMISSAL
1
or duration of his confinement must be brought under the habeas sections of Title 28 of the
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United States Code. Calderon v. Ashmus, 523 U.S. 740, 747 (1998); Preiser v. Rodriguez,
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411 U.S. 475, 500 (1973). A prisoner must bring a habeas petition if the nature of his claim
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is such that it would necessarily imply the invalidity of his conviction or continuing
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confinement. Bogovich v. Sandoval, 189 F.3d 999, 1002 (9th Cir. 1999) (ADA claim);
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Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) (§ 1983 claim).
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Dismissal is appropriate here. While a district court may construe a habeas petition by
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a prisoner attacking the conditions of his confinement as a civil rights action under 42 U.S.C.
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§ 1983, Wilwording v. Swenson, 404 U.S. 249, 251 (1971), the opposite is not true: a civil
United States District Court
For the Northern District of California
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rights complaint seeking habeas relief should be dismissed without prejudice to bringing it as
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a petition for writ of habeas corpus. Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th
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Cir. 1995). Accordingly, the action is DISMISSED without prejudice to plaintiff filing the
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action as a petition for a writ of habeas corpus. A habeas petition form will be sent to
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plaintiff. The Clerk shall enter judgment in favor of defendant, and close the file.
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IT IS SO ORDERED.
DATED: August 21, 2012
RICHARD SEEBORG
United States District Judge
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No. C 12-3161 RS (PR)
ORDER OF DISMISSAL
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