(HC) Cranford v. O'Brian, et al., No. 1:2015cv01169 - Document 4 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED without prejudice ot Petitioner's right to file a civil rights action pursuant to 42:1983 re 1 Petition for Writ of Habeas Corpus filed by Archie Cranford ; referred to Judge Ishii, signed by Magistrate Judge Michael J. Seng on 07/31/2015. **New case number is 1:15-cv-1169 AWI-MJS (HC)** Objections to F&R due by 9/8/2015(Martin-Gill, S)
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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 Case No. 1:15-cv-01169 MJS (HC) ARCHIE CRANFORD, FINDINGS AND RECOMMENDATION TO Petitioner, DISMISS PETITION FOR WRIT OF HABEAS CORPUS FOR FAILING TO STATE COGNIZABLE CLAIM 12 v. 13 14 15 KATHLEEN O'BRIAN, et al., ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE TO THE PRESENT MATTER Respondents. [Doc. 1] 16 17 18 19 Petitioner is a civil detainee proceeding pro se with a petition for writ of habeas corpus under the authority of 28 U.S.C. § 2254. 20 Petitioner filed the instant petition for writ of habeas corpus on July 28, 2015. 21 (Pet., ECF No. 1.) In the petition, Petitioner presents claims that Respondents have 22 failed to make indigent funds available to his account. (Id.) Moreover, Petitioner asserts 23 that Respondents have verbally abused him and failed to correct the verbal abuse of 24 their subordinates. (Id.) 25 I. DISCUSSION 26 A. 27 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 28 Procedural Grounds for Summary Dismissal If it plainly appears from the petition and any attached exhibits that 1 1 the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. 2 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a 3 petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the 4 respondent’s motion to dismiss, or after an answer to the petition has been filed. A 5 petition for habeas corpus should not be dismissed without leave to amend unless it 6 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis 7 v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 8 B. 9 The instant petition must be dismissed because it does not challenge the fact or 10 Failure to State Cognizable Claim duration of Petitioner’s confinement. 11 A federal court may only grant a petition for writ of habeas corpus if the petitioner 12 can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 13 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the 14 “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 15 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee 16 Notes to Rule 1 of the Rules Governing Section 2254 Cases. 17 In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method 18 for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 19 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory 20 Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 21 Petitioner’s claims do not implicate the fact or duration of his confinement. Petitioner 22 seeks relief for the conditions of his confinement. (See Pet.) Petitioner brings claims 23 relating to Respondents' verbal abuse and failure to make indigent funds available to his 24 account. Petitioner does not challenge his underlying civil commitment. 25 Petitioner’s claims are not cognizable grounds for federal habeas corpus relief 26 and must be dismissed. Should Petitioner wish to pursue his claims, he must do so by 27 way of a civil rights complaint. The Court expresses no opinion as to the merits of such a 28 civil rights complaint. Further, to the extent Petitioner is attempting to appeal the rulings 2 1 of his prior-filed civil rights actions, then Petitioner should direct an appeal to the United 2 States Court of Appeals for the Ninth Circuit. 3 As it does not appear possible that the deficiencies identified herein can be cured 4 by amending the complaint, Petitioner is not entitled to leave to amend prior to dismissal 5 of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en 6 banc). 7 In an appropriate case a habeas petition may be construed as a Section 1983 8 complaint. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418 9 (1971). Although the Court may construe a habeas petition as a civil rights action, it is 10 not required to do so. Since the time when the Wilwording case was decided there have 11 been significant changes in the law. For instance, the filing fee for a habeas petition is 12 five dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For 13 civil rights cases, however, the fee is now $400 and under the Prisoner Litigation Reform 14 Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of 15 deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A 16 prisoner who might be willing to file a habeas petition for which he or she would not have 17 to pay a filing fee might feel otherwise about a civil rights complaint for which the $400 18 fee would be deducted from income to his or her account. Also, a civil rights complaint 19 which is dismissed as malicious, frivolous, or for failure to state a claim would count as a 20 "strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases. 21 In view of these potential pitfalls for Petitioner if the petition were construed as a 22 civil rights complaint, the case is DISMISSED without prejudice to Petitioner to present 23 the claims in a civil rights complaint pursuant to 42 U.S.C. § 1983, rather than a habeas 24 petition, which will be assigned a separate civil number. The Clerk of Court shall send 25 Petitioner a blank civil rights complaint form along with a copy of this Order. 26 II. CONCLUSION AND RECOMMENDATION 27 Therefore it is RECOMMENDED that the petition for writ of habeas corpus be 28 DISMISSED without prejudice to Petitioner's right to file a civil rights action pursuant to 3 1 42 U.S.C. § 1983. Further, the Court ORDERS the Clerk of Court to assign a District 2 Court Judge to the present matter. 3 These findings and recommendations are submitted to the United States 4 District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 5 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 6 Eastern District of California. Within thirty (30) days after being served with a copy, any 7 party may file written objections with the Court and serve a copy on all parties. Such a 8 document should be captioned "Objections to Magistrate Judge's Findings and 9 Recommendations." Replies to the objections shall be served and filed within fourteen 10 (14) days (plus three days if served by mail) after service of the objections. The Court 11 will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). The 12 parties are advised that failure to file objections within the specified time may waive the 13 right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 14 Cir. 2014). 15 16 17 18 IT IS SO ORDERED. Dated: July 31, 2015 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 4
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