Ford v. Rios

Filing 9

FINDINGS And RECOMMENDATION To Grant Motion To Consolidate And Close Case No. 1:12-cv-00607-AWI-MJS As Duplicative (Doc. 6 & 7 ), Findings And Recommendation To Dismiss Petition For Writ Of Habeas Corpus For Failure To State A Cognizable Claim, signed by Magistrate Judge Michael J. Seng on 6/15/2012. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 7/23/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KELVIN FORD,
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Petitioner,
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v.
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H.A. RIOS, JR., Warden,
Respondent.

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1:12-CV-0591 LJO MJS HC
FINDINGS AND RECOMMENDATION TO
GRANT MOTION TO CONSOLIDATE
AND CLOSE CASE NO. 1:12-CV-00607
AWI MJS AS DUPLICATIVE
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR WRIT OF
HABEAS CORPUS FOR FAILURE TO
STATE A COGNIZABLE CLAIM

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2241.

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I.

DISCUSSION

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On April 16, 2012, Petitioner filed the instant petition for writ of habeas corpus. (Pet.,

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ECF No. 1.) The next day, Petitioner filed a pleading labeled "Title 28 U.S.C. § 2241

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Supplement Pursuant To Fed. R. Civ. P. 15(a)." The pleading was construed to be a new

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petition for writ of habeas corpus and assigned a new case number. (See Case No. 1:12-CV-

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0607 AWI MJS.) In both matters, Petitioner filed motions to consolidate on April 27, 2011 and

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May 9, 2011, explaining that the second petition was filed as amendment to the original

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petition, and that Petitioner would like to proceed with only the original action. However it is

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noted that Petitioner also filed a first amended petition in the later filed action (See Case No.

U.S. District Court
E. D. California

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1:12-CV-0697 AWI MJS, ECF No. 8.)

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II.

MOTIONS TO CONSOLIDATE

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Rule 42(a) of the Federal Rules of Civil Procedure provides:

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Consolidation. If actions before the court involve a common question of
law or fact, the court may: (1) join for hearing or trial any or all matters at issue
in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid
unnecessary costs or delay.

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Here, the second filed case is an amended version of the first filed petition, and
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Petitioner has notified the court that his intent was to only to file one petition.
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Accordingly, the Court recommends that the motion to consolidate be granted, the Clerk
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of the Court administratively close the second case, and that all future pleadings should be
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identified by the case number of the lead case.
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III.

FAILURE TO STATE COGNIZABLE CLAIMS

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A federal court may only grant a petition for writ of habeas corpus if the federal
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petitioner can demonstrate that he "is in custody in violation of the Constitution or laws or
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treaties of the United States." 28 U.S.C. § 2241(a), (c)(3). A habeas corpus petition is the
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correct method for a prisoner to challenge “the very fact or duration of his confinement,” and
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where “the relief he seeks is a determination that he is entitled to immediate release or a
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speedier release from that imprisonment.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). In
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contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner
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to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42
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(1991); Preiser, 411 U.S. at 499. In other words, if a successful conditions of confinement
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challenge would not necessarily shorten the prisoner’s sentence, then § 1983 is the
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appropriate vehicle. See Wilkinson v. Dotson, 544 U.S. 74 (2005).
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In this case, Petitioner presents claims of staff misconduct affecting his custody
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classification score and his request to transfer. The claimed depravation does not impact the
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duration of his confinement. Thus, Petitioner is not entitled to habeas corpus relief, and this
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petition must be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do
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so by way of a civil rights complaint. The Court expresses no opinion as to the merits of such
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U.S. District Court
E. D. California

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a civil rights complaint.

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As it does not appear possible that the deficiencies identified herein can be cured by

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amending the complaint, Petitioner is not entitled to leave to amend prior to dismissal of the

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entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en 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 (1971).

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Although the Court may construe a habeas petition as a civil rights action, it is not required to

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do so. Since the time when the Wilwording case was decided there have been significant

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changes in the law. For instance, the filing fee for a habeas petition is five dollars, and if leave

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to proceed in forma pauperis is granted, the fee is forgiven. For civil rights cases, however, the

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fee is now $350 and under the Prisoner Litigation Reform Act the prisoner is required to pay

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it, even if granted in forma pauperis status, by way of deductions from income to the prisoner's

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trust account. See 28 U.S.C. 1915(b)(1). A prisoner who might be willing to file a habeas

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petition for which he or she would not have to pay a filing fee might feel otherwise about a civil

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rights complaint for which the $350 fee would be deducted from income to his or her prisoner

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account. Also, a civil rights complaint which is dismissed as malicious, frivolous, or for failure

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to state a claim would count as a "strike" under 28 U.S.C. § 1915(g), which is not true for

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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, the court recommends that the case be DISMISSED without prejudice to

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Petitioner to present the claims in a civil rights complaint pursuant to 42 U.S.C. § 1983, rather

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than a habeas petition, which will be assigned a separate civil number. The Clerk of Court

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shall send Petitioner a blank civil rights complaint form along with a copy of this Order.

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IV.

RECOMMENDATION

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Accordingly, the Court recommends that the motion to consolidate be granted, the Clerk

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of the Court administratively close Case No. 1:12-CV-0697 AWI MJS, and that all future

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pleadings should be identified by the case number of the lead case, Case No. 1:12-CV-0591

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LJO MJS.

U.S. District Court
E. D. California

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Further, the Court RECOMMENDS that the petition for writ of habeas corpus be

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DISMISSED without prejudice to allow petitioner to bring a civil rights complaint.

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This Findings and Recommendation is submitted to the assigned United States District

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Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California.

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Within thirty (30) days after the date of service of this Findings and Recommendation, any

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party may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Replies to the Objections shall be served and filed within fourteen (14)

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days after service of the Objections. The Finding and Recommendation will then be submitted

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to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636

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(b)(1)(c). The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ci4d6

June 15, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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U.S. District Court
E. D. California

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