Smith v. California Department of Corrections et al

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 4/29/11 ORDERING that the court defers consideration of plaintiffs application to proceed in formapauperis; the complaint is DISMISSED; the Clerk of Court is directed to send plaintiff the forms u sed by prisoners in this district for filing (1) a petition for writ of habeas corpus, and (2) a civil rights complaint. Plaintiff shall, within 30 days after service of this order, complete the attached Notice of Amendment and an amended pleading. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER T. SMITH,

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Plaintiff,

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No. 2:11-cv-0491 KJN P

vs.
CALIFORNIA DEPARTMENT
OF CORRECTIONS, et al.,

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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding without counsel, with a civil rights

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complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the

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magistrate judge for all purposes. 28 U.S.C. § 636(c) and Local Rule 302(a). (Dkt. No. 5.)

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Plaintiff has submitted an amended in forma pauperis application that

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demonstrates petitioner is unable to afford the costs of suit. See 28 U.S.C. § 1915(a). However,

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because it is unclear whether petitioner’s pleading is properly framed as a civil rights action,

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rather than an action in habeas corpus, and because the filing costs associated with each pleading

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are different, the court will defer ruling on the application to proceed in forma pauperis until

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plaintiff has filed an amended pleading.

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The initial pleading provides in full (Dkt. No. 1 at 1-2):

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I feel that Ms. Callison conducted herself in an unp[ro]fessional[]
ma[nn]er and has lied in her allegations against me, which resulted
in an additional six months being added to my sentence which also
r[e]ndered me a program failure, [a] twelve months shu [placement
in the Segregated Housing Unit], and had my fire camp program
revoked.

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Relief: I would like the additional six months added to my
sentence vacated. And my original release date restored. I would
also like my fire camp program as well as my original “point
status” returned. I’m also requesting trial by jury, so that I may
face my accuser in court.

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Amendment of the pleading is necessary. A challenge to the duration of a

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prisoner’s confinement is properly made in a petition for writ of habeas corpus, pursuant to 28

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U.S.C. § 2254; in contrast, a suit for damages challenging a condition of confinement must be

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brought in a civil rights action, pursuant to 42 U.S.C. § 1983. Moreover, the exhaustion

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requirements are different as to each type of action—a federal habeas claim must first be

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exhausted in the state courts, Rose v. Lundy, 455 U.S. 509 (1982), while a civil rights claim must

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first be exhausted through the institution’s administrative appeal system, 42 U.S.C. § 1997e(a);

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Booth v. Churner, 532 U.S. 731, 741 (2001). In addition, a prisoner may not proceed with a civil

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rights damages action that is premised on the outcome of an institutional disciplinary hearing

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decision unless that decision has been invalidated. Edwards v. Balisok, 520 U.S. 641 (1997);

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Heck v. Humphrey, 512 U.S. 477 (1994).

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Finally, plaintiff names as defendants in this action the California Department of

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Corrections and Rehabilitation and “Karen, Callison,” whose professional capacity remains

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unknown. While a properly drawn civil rights complaint may name any defendant with an

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asserted direct role in the alleged violation of plaintiff’s constitutional rights, the only proper

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respondent in a petition for writ of habeas corpus is the state officer having custody of the

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petitioner (i.e., the warden of the prison in which petitioner is incarcerated). See 28 U.S.C. §

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2254; Rule 2(a), Rules Governing § 2254 Cases; Stanley v. California Supreme Court, 21 F.3d
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359, 360 (9th Cir. 1994).

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For the foregoing reasons, the court must grant petitioner leave to file an amended

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pleading, framed either as an amended civil rights complaint or a petition for writ of habeas

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corpus. If plaintiff chooses to file a petition for writ of habeas corpus, he must demonstrate

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exhaustion of his state court remedies, and name as respondent only the warden of the facility in

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which petitioner is incarcerated. If plaintiff chooses to file an amended civil rights complaint, he

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must demonstrate exhaustion of available administrative remedies, and name as defendants only

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individuals who personally participated in a substantial way in allegedly depriving plaintiff of a

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federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person

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subjects another to the deprivation of a constitutional right if he does an act, participates in

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another’s act, or omits to perform an act that he is legally required to perform, thus causing the

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alleged deprivation). The complaint or petition must identify the specific relief sought, and the

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claims must be set forth in short and plain terms, simply, concisely and directly. See Fed. R. Civ.

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P. 8; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of

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a simplified pleading system, which was adopted to focus litigation on the merits of a claim”).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The court defers consideration of plaintiff’s application to proceed in forma

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pauperis;

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2. The complaint is dismissed;

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3. The Clerk of Court is directed to send plaintiff the forms used by prisoners in

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this district for filing (1) a petition for writ of habeas corpus, and (2) a civil rights complaint.
4. Plaintiff shall, within thirty days after service of this order, complete the
attached Notice of Amendment and submit the following to the court:

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a. The completed Notice of Amendment;

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b. An amended pleading, prefaced by one of the forms provided herein by

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the Clerk of Court, and clearly designated either an Amended Petition for Writ of Habeas Corpus

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or a Civil Rights Complaint pursuant to 42 U.S.C. § 1983;

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c. Alternatively, if plaintiff concludes that he does not yet meet the

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requirements for filing either a civil rights complaint or a petition for writ of habeas corpus,

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plaintiff may request the voluntary dismissal of this action.

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SO ORDERED.
DATED: April 29, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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smith0491.scrn.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER T. SMITH,

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Plaintiff,

No. 2:11-cv-0491 KJN P

vs.
CALIFORNIA DEPARTMENT
OF CORRECTIONS, et al.,

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Defendants.

NOTICE OF AMENDMENT

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/

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Plaintiff hereby submits the following document in compliance with the court’s
order filed

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______________

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OR

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Petition for Writ of Habeas Corpus

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Plaintiff requests voluntary dismissal of this action.

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Amended Complaint

Alternatively:

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_________________________________
Date

Plaintiff

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