Donnell Butler v. Matevousian

Filing 5

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be Dismissed without prejudice to Petitioner's right to file a civil rights action pursuant to 42:1983; referred to Judge Drozd; ORDERED to assign a District Court Judge to this present mater; new case number is 1:17-cv-00345 DAD-MJS (HC),signed by Magistrate Judge Michael J. Seng on 03/23/17. Objections to F&R due 30-Day Deadline (Martin-Gill, S)

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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. 1:17-cv-00345 MJS (HC)
DONNELL BUTLER,

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

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v.

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ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
THE PRESENT MATTER

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ANDRE MATEVOUSIAN,

Respondent. [Doc. 1]

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
corpus under the authority of 28 U.S.C. § 2241.

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Petitioner filed the instant petition for writ of habeas corpus on March 6, 2017.

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(Pet., ECF No. 1.) In the petition, Petitioner complains that he has been unable to

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purchase hygiene items or pens from the commissary. Additionally, he complains that he

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has not received a response to his D.H.O Appeal or Inmate Requests to Staff. He seeks

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unspecified injunctive relief.

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I.

Discussion

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A.

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

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Procedural Grounds for Summary Dismissal

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

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the correct method for a prisoner to challenge “the very fact or duration of his

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confinement,” and where “the relief he seeks is a determination that he is entitled to

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immediate release or a speedier release from that imprisonment.” Preiser v. Rodriguez,

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411 U.S. 475, 489 (1973). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983

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is the proper method for a prisoner to challenge the conditions of that confinement.

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McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. In other

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words, if a successful conditions of confinement challenge would not necessarily shorten

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the prisoner’s sentence, then § 1983 is the appropriate vehicle. See Wilkinson v. Dotson,

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544 U.S. 74 (2005).

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

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stated, Petitioner challenges the conditions of his confinement. Specifically, he

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challenges the denial of access to commissary items and the failure to process

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administrative appeals and inmate inquiries. (Id. at 3-4, 6-8.) Although the petition makes

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passing reference to the appeal of a disciplinary proceeding, the petition contains no

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information regarding the nature of that proceeding or its result. There is no indication
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that the proceeding had any effect on the fact or duration of Petitioner’s confinement, nor

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does Petitioner appear to challenge the disciplinary proceeding itself. Petitioner's claims,

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even if meritorious, would not implicate the duration of his confinement. Finally,

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Petitioner does not challenge his underlying conviction by way of this petition.

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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 $350

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

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

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count as a "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 Court will recommend the case be dismissed without prejudice
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to Petitioner presenting the claims in a civil rights complaint pursuant to 42 U.S.C.

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§ 1983, rather than a habeas petition, which will be assigned a separate civil number.

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The Clerk of Court shall send Petitioner a blank civil rights complaint form along with a

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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). The

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parties are advised that failure to file objections within the specified time may waive the

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right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th

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Cir. 2014).

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IT IS SO ORDERED.
Dated:

March 23, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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