Morrison Michael v. The State of California

Filing 3

ORDER: DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, 1 WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF APPEALABILITY by Judge Christina A. Snyder. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL MORRISON,

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Petitioner,
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v.
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THE STATE OF CALIFORNIA,
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Respondent.
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___________________________________)

NO. CV 15-00635-CAS (MAN)

ORDER: DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE; AND DENYING
CERTIFICATE OF APPEALABILITY

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On January 28, 2015, Petitioner filed a habeas petition pursuant to

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28 U.S.C. § 2254 (“Petition”).

Petitioner, who is incarcerated at the

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Los Angeles County Jail, names as Respondent the State of California.

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Rule 4 of the Rules Governing Section 2254 Cases in the United

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States District Courts mandates the summary dismissal of a Section 2254

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petitions “[i]f it plainly appears from the petition and any attached

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exhibits that the petitioner is not entitled to relief in the district

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court.”

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instant Petition is required due to a lack of jurisdiction.

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Rule 4, 28 U.S.C. foll. § 2254.

Summary dismissal of the

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Petitioner is not challenging a state conviction or sentence, the

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execution of a sentence, or the fact of his custody or incarceration.

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Rather,

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including a form civil rights complaint, and his requests have not been

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fulfilled.

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is “suppose[d] to get . . . government legal documents.”(Petition at 3.)

Petitioner

complains

that

he

has

requested

legal

forms,

He contends that, under the United States Constitution, he

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Generally, a state prisoner challenging the fact or duration of his

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state conviction or sentence on the ground of alleged violations of

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federal rights, and seeking release from imprisonment as a result, does

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so by way of a federal habeas corpus petition pursuant to 28 U.S.C. §

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2254.

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Branch, 974 F.2d 116, 117 (9th Cir. 1991).

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a prisoner’s conditions of confinement must be brought through a civil

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rights action, rather than through a habeas corpus petition.

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v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); see also Docken v. Chase, 393

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F.3d 1024, 1026 (9th Cir. 2004)(“Traditionally, challenges to prison

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conditions have been cognizable only via § 1983, while challenges

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implicating the fact or duration of confinement must be brought through

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a habeas petition.”).

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a prisoner “who is making a constitutional challenge to the conditions

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of his prison life, but not to the fact or length of his custody.”

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Preiser,

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challenge the conditions of a prisoner’s confinement, whether the inmate

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seeks monetary or injunctive relief, fall outside of that core [of

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habeas relief] and may be brought pursuant to § 1983 in the first

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instance.”

See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Sisk v.

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U.S.

at

By contrast, challenges to

See Badea

A civil rights action is the “proper remedy” for

500.

“[C]onstitutional

claims

Nelson v. Campbell, 541 U.S. 637, 643 (2004).
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that

merely

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Notwithstanding Petitioner’s invocation of Section 2254, he seeks

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to pursue a civil rights claim based on an asserted violation of his

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federal constitutional right to access the courts.

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injunctive relief, i.e., an order requiring Jail officials to provide

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him with the legal forms he has requested.

Petitioner seeks relief that

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is not available through a habeas action.

See Douglas v. Jacquez, 626

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F.3d 501, 504 (9th Cir. 2010)(“The power of a federal habeas court ‘lies

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to enforce the right of personal liberty’ . . . [and as] such, a habeas

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court

‘has

the

power

to

release’

a

prisoner,

He apparently seeks

but

‘has

no

other

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power.’”)(citations omitted).

Petitioner’s claim, therefore, must be

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raised by way of a civil rights complaint, rather than through a habeas

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petition brought under Section 2254.

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While the Court may construe a flawed habeas petition as a civil

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rights action, see Wilwording v. Swenson, 404 U.S. 249, 251 (1971),

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converting the Petition to a 42 U.S.C. § 1983 complaint would be

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improper, given that:

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filing fee; (2) the Petition was not accompanied by a certified trust

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account statement covering the past six months as required by 28 U.S.C.

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§ 1915(a); (3) the Petition was not accompanied by an authorization from

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Petitioner to have the $350 filing fee deducted from his trust account

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pursuant to 28 U.S.C. § 1915(b); (4) no viable Section 1983 claim has

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been stated against the sole named Respondent1; and (5) there is no

(1) the Petition was not accompanied by the $350

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The State of California is the only named Respondent. The
Petition, however, complains about events that allegedly took place at
a facility run by the County of Los Angeles Sheriff’s Department.
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indication that Petitioner has exhausted his administrative remedies.2

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In addition, if the Petition were converted to a Section 1983

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complaint, Petitioner would be obligated to pay the $350 filing fee for

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such a civil action, either in full or through withdrawals from his

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prison trust account in accordance with the availability of funds.

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28 U.S.C. § 1915(b).

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would not end Petitioner’s obligation to pay that $350 filing fee.

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Further, the Court would be obligated to screen the converted Petition

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pursuant to the screening provisions of the Prisoner Litigation Reform

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Act of 1995.

See

The dismissal of this action at the pleading stage

See 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1).

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As noted above, the allegations of the Petition do not state a

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cognizable Section 1983 claim against Respondent.

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Petition ultimately were dismissed for failure to state a claim upon

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which relief may be granted, that dismissal could count as a “strike”

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against Petitioner for purposes of 28 U.S.C. § 1915(g), which provides

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that a prisoner who has three “strikes” -- i.e., prior actions dismissed

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on the grounds that they are frivolous, malicious, or fail to state a

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claim upon which relief may be granted -- may not bring an action or

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appeal without prepayment of the full filing fee unless “the prisoner is

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under imminent danger of serous physical injury.”

If the converted

Thus, the Court

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42 U.S.C. § 1997e(a) provides that:
“No action shall be
brought with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.” Section 1997e(a) requires
exhaustion “irrespective of the forms of relief sought and offered
through administrative avenues.” Booth v. Churner, 531 U.S. 731, 741
n.6 (2001).
Petitioner does not allege that he has exhausted his
administrative remedies available to him at the Los Angeles County Jail.
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believes it is appropriate to dismiss the Petition, without prejudice,

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so that Petitioner may determine whether or not he wishes to raise his

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present claim through a properly-submitted civil rights complaint.3

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Accordingly, based upon the foregoing, IT IS ORDERED that Judgment
shall be entered dismissing the instant Petition without prejudice.

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In addition, pursuant to Rule 11(a) of the Rules Governing Section
2254

Cases

in

the

United

States

District

Courts,

the

Court

has

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considered whether a certificate of appealability is warranted in this

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case.

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85,

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certificate of appealability is unwarranted and, thus, a certificate of

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appealability is DENIED.

See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-

120

S.

Ct.

1595,

1604

(2000).

The

Court

concludes

that

a

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: January 30, 2015

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CHRISTINA A. SNYDER
UNITED STATES DISTRICT JUDGE

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PRESENTED BY:

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MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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Before filing such a complaint, Petitioner will have an
opportunity to consider carefully if he is willing to incur the $350
filing fee obligation and risk the possibility of incurring a “strike.”
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