Taylor v. McCoy et al

Filing 6

ORDER DIRECTING the Clerk of Court to Assign a District Court Judge; FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED Without Prejudice signed by Magistrate Judge Michael J. Seng on 6/26/20 15. This case has been assigned to District Judge Anthony W. Ishii and Magistrate Judge Michael J. Seng. The new case number is 1:15-cv-00951-AWI-MJS (HC). Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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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-00951 MJS (HC)
JEFFREY LAMONT TAYLOR,

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v.

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MCCOY, et al.,

FINDINGS AND RECOMMENDATION TO
Petitioner, DISMISS 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

Respondents. [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 June 24, 2015.
(Pet., ECF No. 1.) In the petition, Petitioner challenges the conditions of his confinement.
He presents claims of deliberate indifference to his serious medical needs, infliction of
pain and suffering, cruel and unusual punishment and torture. (Pet. at 4-5.) Specifically,
Petitioner alleges that Respondents refused to provide him treatment for severe chest
pains, causing physical and emotional suffering. (Id. at 4.) Petitioner asserts that the
refusal to provide treatment was based on racial discrimination.

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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 claim does not implicate the fact or duration of his confinement.

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Petitioner seeks relief for the conditions of his confinement. (See Pet.) Petitioner brings

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claims relating to denial of medical treatment. (Pet. at 4-5.) Petitioner does not challenge

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his underlying conviction, nor does Petitioner seek a less restrictive level of confinement.
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Petitioner’s claims are not cognizable grounds for federal habeas corpus relief and must

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

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

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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. Further, the Court ORDERS the Clerk of Court to assign a District

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Court Judge to the present 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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Petitioner is 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:

June 26, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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