Hubbard v. Kern County Sheriff's Office

Filing 6

FINDINGS and RECOMMENDATION to Dismiss 1 Petition for Writ of Habeas Corpus for Failing to State Cognizable Claim; ORDER DIRECTING Clerk of Court to Assign District Court Judge to the Present Matter, signed by Magistrate Judge Michael J. Seng o n 5/21/15. Objections to F&R Due Within Thirty Days. This case is assigned to District Judge Lawrence J. O'Neill and Magistrate Judge Michael J. Seng for all further proceedings. New Case Number: 1:15-cv-00741-LJO-MJS (HC). (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:15-cv-00741 MJS (HC)
ZANE HUBBARD,

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v.

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FINDINGS AND RECOMMENDATION TO
Petitioner, DISMISS PETITION FOR WRIT OF
HABEAS CORPUS FOR FAILING TO
STATE COGNIZABLE CLAIM

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KERN COUNTY SHERIFF'S OFFICE,
Respondent.

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ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
THE PRESENT MATTER
[Doc. 1]

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus under the authority of 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on May 14, 2015.
(Pet., ECF No. 1.)

In the petition, Petitioner alleges that Petitioner has suffered

harassment and discrimination by employees of Respondent. Further, Petitioner
requests that the matter be "extradited"1 to a venue in the state of New Mexico, and that
counsel be appointed to assist with the present petition.

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From the context of Petitioner's claims, it is evident that Petitioner is requesting a change of
venue for the instant civil lawsuit, rather than to be transported to New Mexico for potential criminal
prosecution.

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I.

DISCUSSION

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A.

Procedural Grounds for Summary Dismissal

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Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:

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If it plainly appears from the petition and any attached exhibits that
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.

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The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a

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petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the

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respondent’s motion to dismiss, or after an answer to the petition has been filed. A

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petition for habeas corpus should not be dismissed without leave to amend unless it

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appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis

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v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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B.

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The instant petition must be dismissed because it does not challenge the fact or

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Failure to State Cognizable Claim

duration of Petitioner’s confinement.

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A federal court may only grant a petition for writ of habeas corpus if the petitioner

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can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. §

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2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the

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“legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir.

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1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee

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Notes to Rule 1 of the Rules Governing Section 2254 Cases.

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In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method

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for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500

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U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory

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Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.

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Petitioner’s claims do not implicate the fact or duration of his confinement. The

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Court notes difficulty in determining what Petitioner is claiming. However, it is apparent

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that Petitioner is not challenging his underlying conviction or the duration of his

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confinement.

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Petitioner describes in the petition that he has been harassed and discriminated

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against by Repsondent, specifically including claims that employees of Respondent are

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prohibiting his electronic communication, placing chemicals in his food, denying him

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relief from claims of sexual harassment, racial discrimination, entrapment, and assault by

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prison employees. (Pet. at 8.) Petitioner alleges that starting in 2011, Respondent has

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requested that Petitioner become a "male, bisexual prostitute for law enforcement," and

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that other officers employed by Respondent have propositioned him for sex. (Pet. at 10.)

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Petitioner further contends that other officers abused him by ordering multiple

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unauthorized cavity searches without a doctor present and without probable cause, and

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posting the details of the cavity searches on the internet. (Id. at 11.) Petitioner provides

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information regarding further actions of Respondent, none relate to his underlying

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conviction or involve requests for his earlier release from confinement.

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Petitioner’s claims are not cognizable grounds for federal habeas corpus relief

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and must be dismissed. Should Petitioner wish to pursue his claims, he must do so by

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way of a civil rights complaint. The Court expresses no opinion as to the merits of such a

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civil rights complaint.

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

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

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

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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

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(1971). Although the Court may construe a habeas petition as a civil rights action, it is

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not required to do so. Since the time when the Wilwording case was decided there have

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been significant changes in the law. For instance, the filing fee for a habeas petition is

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five dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For

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civil rights cases, however, the fee is now $400 and under the Prisoner Litigation Reform

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Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of

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deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A

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prisoner who might be willing to file a habeas petition for which he or she would not have

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to pay a filing fee might feel otherwise about a civil rights complaint for which the $400

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fee would be deducted from income to his or her account. Also, a civil rights complaint

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which is dismissed as malicious, frivolous, or for failure to state a claim would count as a

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"strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases.

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In view of these potential pitfalls for Petitioner if the petition were construed as a

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civil rights complaint, the case is DISMISSED without prejudice to Petitioner to present

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

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petition, which will be assigned a separate civil number. The Clerk of Court shall send

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

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II.

CONCLUSION AND RECOMMENDATION

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Therefore it is RECOMMENDED that the petition for writ of habeas corpus be

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DISMISSED without prejudice to Petitioner's right to file a civil rights action pursuant to

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42 U.S.C. § 1983. The Court further orders that the Clerk of Court to assign a District

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Court judge to the matter.

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These findings and recommendations are submitted to the United States District

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Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636

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(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court,

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Eastern District of California. Within thirty (30) days after being served with a copy, 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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Recommendations." Replies to the objections shall be served and filed within fourteen

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(14) days (plus three days if served by mail) after service of the objections. The Court

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will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(c).

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The parties are advised that failure to file objections within the specified time may
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waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

May 21, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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