Washington v. Fresno County Sheriff

Filing 7

ORDER DENYING Petitioner's Construed 6 Motion to Amend signed by Magistrate Judge Jennifer L. Thurston on 3/12/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERRY WASHINGTON,
Petitioner,
v.
FRESNO COUNTY SHERIFF,
Respondent.

Case No.: 1:14-cv-00130-AWI-JLT
ORDER DENYING PETITIONER’S CONSTRUED
MOTION TO AMEND
(Doc. 6)

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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
PROCEDURAL HISTORY
The instant petition was filed on January 29, 2014. (Doc. 1). Petitioner alleges that he is in

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custody of the Fresno County Jail for failing to appear in court on time. (Doc. 1, p. 1). Petitioner does

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not challenge either a conviction or sentence; indeed, Petitioner concedes that his case has not yet been

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prosecuted. (Id.). Instead, Petitioner alleges that he is presently in custody and being denied adequate

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medical care for injuries he has sustained, he is being harassed by inmates and staff, and he has been

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denied access to a grievance form to file with the jail. (Id.; pp. 1; 2; 8).

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On February 10, 2014, after conducting a preliminary screening of the petition, the Court

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issued Findings and Recommendations to dismiss the petition for failure to state a cognizable federal

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habeas claim. (Doc. 4). In the Findings and Recommendations, which are presently pending before
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the U.S. District Judge, the Court concluded that Petitioner was challenging the conditions of his

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confinement, not the fact or duration of that confinement, and therefore the appropriate action would

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be to file a civil rights complaint pursuant to 42 U.S.C. § 1983. (Id.). The Findings and

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Recommendations gave Petitioner 21 days within which to file objections. To date, Petitioner has not

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filed objections.

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However, on February 28, 2014, Petitioner filed a separate federal petition which was docketed

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as case no. 1:14-cv-00282-SKO. In that petition, Petitioner alleges that the Fresno County jail has

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denied him appropriate medical care. Because, as will be discussed below, the Court must treat a

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subsequent petition filed during the pendency of the earlier petition as a motion to amend the earlier

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petition, the Court, on March 6, 2014, construed the petition in case no. 1:14-cv-00282-SKO to be a

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motion to amend the petition in this case, and directed the Clerk of the Court to file the later petition as

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a motion to amend in this case. (Doc. 5). Accordingly, on the petition in case no. 1:14-cv-00282-

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SKO has been filed in this case as a motion to amend the instant petition with the claim contained in

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the later petition. (Doc. 6).
DISCUSSION

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In Woods v. Carey, 525 F.3d 886 (9th Cir. 2008), the Ninth Circuit held that, under certain

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circumstances, if a pro se petitioner files a habeas petition during the pendency of a previous petition,

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the district court should construe the second petition as a motion to amend the previous petition.

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Woods, 525 F.3d at 889-890. Hence, Woods appears to require a district court to construe a “second

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or successive” petition filed while an earlier petition is still pending in the district court as a motion to

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amend the earlier petition.

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Because, as discussed, the instant petition was still pending at the time he filed his petition in

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case no. 1:14-cv-00282-SKO, the Court was required to construe the latter petition as a motion to

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amend the instant petition. The Clerk of the Court docketed the petition as a motion to amend on

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March 6, 2014. (Doc. 6). Thus, the Court will now consider whether to allow the amendment.

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A petitioner may amend a petition for writ of habeas corpus once “as a matter of course,” and

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without leave of Court, before a response has been filed under Federal Rule of Civil Procedure 15(a),

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as applied to habeas corpus actions pursuant to 28 U.S.C. § 2242 and Rule 11 of the Rules Governing
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Section 2254 Cases. Calderon v. United States District Court (Thomas), 144 F.3d 618, 620 (9th Cir.

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1998); Bonn v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Leave of Court is required for all other

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amendments. Rule Civ. P. 15(a).

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Here, although Respondent has not filed a response, the Findings and Recommendations have

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already been referred to the District Judge for a final ruling. Moreover, Woods provides that the

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district court should construe the later petition as a motion to amend the earlier petition, thus implying

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that the district court should employ the four-pronged test used to determine whether an amendment is

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appropriate when an amendment cannot be obtained as a matter of right under Rule 15(a). See Bonin

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v. Calderon, 59 F.3d 815 (9th Cir.1995) (applying Rule 15(a) in a habeas case). In Bonin, the Ninth

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Circuit set forth four considerations in determining whether to allow an amendment: “bad faith, undue

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delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously

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amended his pleadings.” Id. at 844-845.

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Here, the Court determines that any amendment seeking to allege improper medical care would

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be futile. In Bonin, the Ninth Circuit held that futility of amendment can, by itself, justify the denial

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of a motion for leave to amend. Bonin, 59 F.3d at 845; see also Lopez v. Smith, 203 F.3d 1122, 1129-

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1130 (9th Cir. 2000) (en banc) (confirming district court's authority to dismiss without leave to amend

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where amendment would be futile).

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The proffered amended claim alleges improper medical care by the Fresno County jail staff.

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However, as the Court indicated in the Findings and Recommendations, a habeas corpus petition is the

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correct method for a prisoner to challenge the “legality or duration” of his confinement. Badea v. Cox,

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931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S. Ct. 1827

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(1973). However, “[h]abeas jurisdiction is absent, and a § 1983 action proper, where a successful

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challenge to a prison condition will not necessarily shorten the prisoner’s sentence.” Ramirez v.

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Galaza, 334 F.3d 850, 859 (9th Cir. 2003); Advisory Committee Notes to Rule 1 of the Rules

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Governing Section 2254 Cases.

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Because the proffered amended claim challenges a prison condition that will not necessarily

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shorter Petitioner’s sentence, it is not a cognizable habeas claim. Hence, amending the original

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petition to include such a claim would be futile. If Petitioner wishes to pursue a claim based on denial
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of adequate medical care, he should bring that claim as a civil rights claim pursuant to 42 U.S.C. §

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1983.
ORDER

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For the foregoing reasons, IT IS HEREBY ORDERED that Petitioner’s motion to amend the
petition (Doc. 6), is DENIED.

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IT IS SO ORDERED.
Dated:

March 12, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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