Silva v. Kings County Jail, et al.

Filing 5

FINDINGS and RECOMMENDATIONS recommending that the Petition be DISMISSED, without prejudice to Petitioner bringing his claims in a civil rights complaint pursuant to 42:1983 re 1 Petition for Writ of Habeas Corpus filed by Justin Joseph Silva ; referred to Judge O'Neill,signed by Magistrate Judge Michael J. Seng on 12/4/17. Objections to F&R due 14-Day Deadline (Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JUSTIN JOSEPH SILVA, Petitioner, 10 11 12 13 v. KINGS COUNTY JAIL, et al., Respondents. Case No. 1:17-cv-01405-MJS (HC) ORDER DIRECTING CLERK’S OFFICE TO ASSIGN A DISTRICT JUDGE TO THIS MATTER FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS 14 (ECF NO. 1) 15 FOURTEEN (14) DAY OBJECTION DEADLINE 16 17 18 19 Petitioner is proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2241. He is detained at the Kings County Jail awaiting trial. 20 Petitioner complains of the following: “medical procedures, cruel and unusual 21 punishment, manipulation, jail conditions, title 15 violations, civil rights infringement, 22 mental health violations.” (ECF No. 1 at 2.) Accordingly, while Petitioner asserts that he 23 is entitled to relief, it does not appear that his claims implicate the fact or length of his 24 detention. Petitioner was ordered to show cause why the petition should not be 25 dismissed on that basis. (ECF No. 4.) He did not respond and the time for doing so has 26 passed. Accordingly, the undersigned recommends dismissal of the petition. 27 28 1 I. Discussion 2 A. 3 Rule 4 of the Rules Governing Section 22541 Cases provides in pertinent part: 4 Procedural Grounds for Summary Dismissal 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. 5 6 7 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a 8 petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the 9 respondent’s motion to dismiss, or after an answer to the petition has been filed. A 10 petition for habeas corpus should not be dismissed without leave to amend unless it 11 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis 12 v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 13 B. Failure to State Cognizable Claim 14 A federal court may only grant a petition for writ of habeas corpus if the petitioner 15 can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 16 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the 17 “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 18 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee 19 Notes to Rule 1 of the Rules Governing Section 2254 Cases. 20 In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method 21 for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 22 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory 23 Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. Petitioner’s claims do not implicate the fact or duration of his confinement. 24 25 26 27 1 The Rules Governing Section 2254 Cases may be applied to petitions for writ of habeas corpus other than those brought under § 2254 at the Court’s discretion. See, Rule 1(b) of the Rules Governing Section 2254 Cases. Civil Rule 81(a)(4) provides that the rules “apply to proceedings for habeas corpus . . . to the extent that the practice in such proceedings is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing 2255 Cases; and has previously conformed to the practice in civil actions.” Fed. R. Civ. P. 81(a)(4). 28 2 1 Petitioner does not challenge his underlying detention but rather his conditions of his 2 confinement, specifically the medical and mental health care, other unspecified 3 conditions, and violations of state policies, procedures, and regulations. Petitioner's 4 claims, even if meritorious, would not provide a basis for federal habeas jurisdiction. 5 A petition for habeas corpus should not be dismissed without leave to amend 6 unless it appears that no tenable claim for relief can be pleaded were such leave 7 granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). Here, Petitioner was ordered 8 to show cause why the petition should not be dismissed and afforded the opportunity to 9 file an amended petition. He did not do so. As it does not appear possible that the 10 deficiencies identified herein can be cured through amendment, Petitioner is not entitled 11 to further leave to amend prior to dismissal of the entire action. See Lopez v. Smith, 203 12 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 13 C. Conversion to Civil Rights Action 14 In an appropriate case a habeas petition may be construed as a Section 1983 15 complaint. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418 16 (1971). Although the Court may construe a habeas petition as a civil rights action, it is 17 not required to do so. Since the time when the Wilwording case was decided there have 18 been significant changes in the law. For instance, the filing fee for a habeas petition is 19 five dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For 20 civil rights cases, however, the fee is now $400 and under the Prisoner Litigation Reform 21 Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of 22 deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A 23 prisoner who might be willing to file a habeas petition for which he or she would not have 24 to pay a filing fee might feel otherwise about a civil rights complaint for which the $350 25 fee would be deducted from income to his or her prisoner account. Also, a civil rights 26 complaint which is dismissed as malicious, frivolous, or for failure to state a claim would 27 count as a "strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases. 28 3 1 In view of these potential pitfalls for Petitioner if the petition were construed as a 2 civil rights complaint, the Court will recommend the case be dismissed without prejudice 3 to Petitioner presenting the claims in a civil rights complaint pursuant to 42 U.S.C. 4 § 1983, rather than a habeas petition, which will be assigned a separate civil number. 5 II. Conclusion and Recommendation 6 Because all parties have not consented to Magistrate Judge jurisdiction pursuant 7 to 28 U.S.C. § 636(c), the Clerk of Court is directly to randomly assign this matter to a 8 District Judge. 9 Based on the foregoing analysis, it is HEREBY RECOMMENDED that the petition 10 be dismissed, without prejudice to Petitioner bringing his claims in a civil rights complaint 11 pursuant to 42 U.S.C. § 1983. 12 The findings and recommendation are submitted to the assigned United States 13 District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 14 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern 15 District of California. Within fourteen (14) days after being served with a copy, the parties 16 may file written objections with the Court. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendation.” Any reply to the 18 objections shall be served and filed within fourteen (14) days after service of the 19 objections. The parties are advised that failure to file objections within the specified time 20 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 21 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 24 25 IT IS SO ORDERED. Dated: December 4, 2017 /s/ 26 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 27 28 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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