(HC) Brown v. Montgomery, No. 1:2017cv01584 - Document 8 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Convert Petition for Writ of Habeas Corpus to Civil Rights Action Under 42 U.S.C. 1983, signed by Magistrate Judge Erica P. Grosjean on 2/1/18. Objections to F&R Due Within Twenty Days. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 KAREEM BROWN, 11 Case No. 1:17-cv-01584-LJO- EPG-HC Petitioner, 12 FINDINGS AND RECOMMENDATION TO CONVERT PETITION FOR WRIT OF HABEAS CORPUS TO CIVIL RIGHTS ACTION UNDER 42 U.S.C. § 1983 v. 13 WARREN MONTGOMERY, 14 Respondent. 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254. Given that the instant petition is not cognizable in federal habeas 19 corpus, the undersigned recommends that the petition be converted to a civil rights action under 20 42 U.S.C. § 1983 after obtaining consent from Petitioner. 21 I. 22 BACKGROUND On November 29, 2017, Petitioner filed the instant petition for writ of habeas corpus. 23 24 Therein, Petitioner challenges a prison disciplinary proceeding in which he was found guilty of 25 destruction of state property (i.e., legal volumes) and was required to pay $3,276.09, the cost of 1 26 replacing the destroyed volumes. (ECF No. 1 at 4–5). On December 4, 2017, this Court ordered 27 Petitioner to show cause why the petition should not be dismissed for lack of jurisdiction 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 1 1 pursuant to Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc). (ECF No. 4). To date, 2 Petitioner has failed to file a response to the order to show cause, and the time for doing so has 3 passed. 4 II. 5 DISCUSSION 6 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 7 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 8 to file a response, if it “plainly appears from the petition and any attached exhibits that the 9 petitioner is not entitled to relief in the district court.” 10 A. Federal Habeas Corpus Jurisdiction 11 By statute, federal courts “shall entertain an application for a writ of habeas corpus in 12 behalf of a person in custody pursuant to the judgment of a State court only on the ground that he 13 is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 14 § 2254(a). A claim falls within the “core of habeas corpus” when a prisoner challenges “the fact 15 or duration of his confinement” and “seeks either immediate release from that confinement or the 16 shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The Ninth Circuit 17 has adopted the rule that a “state prisoner’s claim [that] does not lie at ‘the core of habeas 18 corpus’ . . . must be brought, ‘if at all,’ under § 1983.” Nettles, 830 F.3d at 934 (quoting Preiser, 19 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)). Therefore, if “success on 20 [Petitioner]’s claims would not necessarily lead to his immediate or earlier release from 21 confinement, [Petitioner]’s claim does not fall within ‘the core of habeas corpus,’ and he must 22 instead bring his claim under § 1983.” Nettles, 830 F.3d at 935 (quoting Skinner, 562 U.S. at 535 23 n.13). 24 In the instant petition, Petitioner challenges on due process grounds a prison disciplinary 25 proceeding in which he was found guilty and was required to pay $3,276.09. (ECF No. 1 at 4–5). 26 Petitioner does not allege that the disciplinary violation resulted in the loss of credits, and it 27 appears that Petitioner may be serving a life sentence. (ECF No. 1 at 1). Therefore, success on 28 Petitioner’s challenge to the disciplinary proceeding would not necessarily lead to immediate or 2 1 earlier release from custody. Accordingly, Petitioner’s claim is not cognizable in federal habeas 2 corpus. 3 B. Conversion to § 1983 Civil Rights Action 4 “If the complaint is amenable to conversion on its face, meaning that it names the correct 5 defendants and seeks the correct relief, the court may recharacterize the petition so long as it 6 warns the pro se litigant of the consequences of the conversion and provides an opportunity for 7 the litigant to withdraw or amend his or her complaint.” Nettles, 830 F.3d at 936 (quoting Glaus 8 v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). The Court notes that habeas corpus and 9 prisoner civil rights actions differ in a variety of respects, such as the proper defendants, filing 10 fees, exhaustion requirements, and restrictions on future filings (e.g., the Prison Litigation 11 Reform Act’s three-strikes rule). Nettles, 830 F.3d at 936 (citing Robinson v. Sherrod, 631 F.3d 12 839, 841 (7th Cir. 2011); Glaus, 408 F.3d at 388). If Petitioner chooses to convert the instant matter to a civil rights action, Petitioner will 13 14 be required to submit a civil rights complaint form that names the proper defendants and seeks 15 appropriate relief. The filing fee for § 1983 civil rights cases is $350, and Petitioner is required to 16 pay the full amount by way of deductions from income to Petitioner’s trust account, even if 17 granted in forma pauperis status. See 28 U.S.C. § 1915(b)(1).2 Petitioner also may, at his option, 18 voluntarily dismiss his habeas petition without prejudice to refiling his claims as a § 1983 civil 19 rights action. However, Petitioner is forewarned that dismissal and refiling may subject 20 Petitioner to a possible statute of limitations bar as well as other complications as set forth above. 21 III. 22 RECOMMENDATION Accordingly, the undersigned HEREBY RECOMMENDS that that the petition for writ 23 24 of habeas corpus be converted to a civil rights action under 42 U.S.C. § 1983 after obtaining 25 consent from Petitioner. This Findings and Recommendation is submitted to the assigned United States District 26 27 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 28 2 The Court previously authorized Petitioner to proceed in forma pauperis in the instant case. (ECF No. 2). 3 1 Rules of Practice for the United States District Court, Eastern District of California. Within 2 TWENTY (20) days after service of the Findings and Recommendation, Petitioner may file 3 written objections with the court and serve a copy on all parties. Such a document should be 4 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 5 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 6 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 7 time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 8 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 11 IT IS SO ORDERED. Dated: February 1, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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