Habeeb v. Foulk

Filing 11

ORDER signed by Magistrate Judge Craig M. Kellison on 10/30/14 ORDERING that Petitioners request for time to file his petition for writ of habeas corpus 1 is granted to the extent that petitioner is required to file an actual petition to initiate th is case; The Clerk of the Court shall send petitioner both a blank petition for writ of habeas corpus and a blank prisoner civil rights form complaint; Petitioner shall choose whether he will proceed in this action with a petition for writ of habeas corpus appropriately challenging a conviction or whether he will file a complaint to proceed in a civil rights action pursuant to 42 U.S.C. § 1983; Petitioner shall file his amended pleading within 30 days of the date of service of this order; Petitioner shall also submit on the form provided by the Clerk of the Court, within 30 days from the date of this order, a complete application for leave to proceed in forma pauperis, with the required certifications, or the appropriate filing fe e; The Clerk of the Court is further directed to send petitioner a new form Application to Proceed In Forma Pauperis By a Prisoner; Petitioners motion for appointment of counsel 4 is denied without prejudice to renewal once petitioner determines how he will proceed in this action and files the appropriate amended pleadings and in forma pauperis application; and Petitioners motion to amend his complaint 5 is denied as unnecessary. (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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TAMIR ABDULLAH HABEEB,

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Petitioner,
vs.

ORDER

F. FOULK,
Respondent.

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No. 2:14-cv-0706-CMK-P

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Petitioner, a state prisoner, brings this action in propria persona. Petitioner

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initiated this action by filing a motion for an extension of time, asking for additional time in

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which to file his petition for writ of habeas corpus. Since then, petitioner has filed several

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requests to amend his complaint and/or supplement his complaint. He has also filed a motion to

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appoint counsel.

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As petitioner’s first filing requested additional time to file his habeas petition, the

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court opened this case as a federal habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner

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subsequent filings, however, raises the question as to what petitioner is attempting to achieve in

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this action. His recent filings appear to challenge his treatment while incarcerated, referencing

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perhaps retaliation, use of excessive force, and other Eighth Amendment violations. He also
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refers to himself as plaintiff, rather than as petitioner as he did in his original filing. Finally, he

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appears to name additional defendants rather than just the warden of the prison. It would appear,

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therefore, that his intention was to initiate a prisoner civil rights action under 42 U.S.C. § 1983,

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or perhaps initiate a separate action with the subsequent filings. Either way, the court needs

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clarification from petitioner.

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Before this action can proceed, either as a habeas case or a prisoner civil rights

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action, petitioner’s fee status must be resolved. The court notes that petitioner has not filed an

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application to proceed in forma pauperis, along with the proper certifications. In addition, before

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the court could grant such a motion, it has to be determined what type of action petitioner is

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pursing so the court can determine the appropriate filing fees.
When a state prisoner challenges the legality of his custody – either the fact of

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confinement or the duration of confinement – and the relief he seeks is a determination that he is

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entitled to an earlier or immediate release, such a challenge is cognizable in a petition for a writ

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of habeas corpus under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973);

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see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49

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F.3d 583, 586 (9th Cir. 1995) (per curiam). Where a prisoner challenges the conditions of

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confinement, as opposed to the fact or duration of confinement, his remedy lies in a civil rights

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action under 42 U.S.C. § 1983. See Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985).

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Thus, 28 U.S.C. § 2254 cannot be used to challenge the conditions of confinement, and 42

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U.S.C. § 1983 cannot be used to challenge the fact or duration of confinement.

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It appears petitioner wishes to challenge the conditions of his confinement, as he

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indicates that he is suffering from retaliation and use of excessive force. However, as he

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originally indicated his intention of filing a habeas petition, the court opened this action as a

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habeas case. To challenge the conditions of his confinement, or his treatment while incarcerated,

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petitioner is attempting to proceed under the wrong process. The Clerk of the Court will be

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directed to provide petitioner with both a new habeas petition as well as a civil rights complaint,
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and petitioner will be required to choose how he wishes to proceed and file an amended pleading.

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Either way petitioner chooses to proceed, his amended petition or complaint must

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be filed within the time provided in this order. Petitioner must raise all his claims and/or grounds

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for relief in one pleading. However, from petitioner’s filings, it appears that he may be

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attempting to bring an action against several unrelated individuals on separate and unrelated

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claims. The Federal Rules of Civil Procedure allow a party to assert “as many claims as it has

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against an opposing party,” but does not provide for unrelated claims against several different

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defendants to be raised in the same action. Fed. R. Civ. Proc. 18(a). “Thus multiple claims

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against a single party are fine, but Claim A against Defendant 1 should not be joined with

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unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in

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different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Petitioner is warned that failure to file the appropriate pleading within the time

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provided in this order may be grounds for dismissal of this action. See Ferdik v. Bonzelet, 963

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F.2d 1258, 1260-61 (9th Cir. 1992); see also Local Rule 110. Petitioner is also warned that if he

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files a complaint which fails to comply with Rule 8 it may, in the court’s discretion, be dismissed

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with prejudice pursuant to Rule 41(b). See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671,

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673 (9th Cir. 1981).

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Petitioner has also filed a motion for the appointment of counsel (Doc. 4). Before

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his motion can be properly evaluated, the court must determine the proper classification for this

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case as the standards for appointing counsel are different depending on the type of proceeding.

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Regardless of they type of proceeding, however, whether counsel is appointed to assist plaintiff

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will only be necessary if the action proceeds. If this case is dismissed on procedural grounds,

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appointment of counsel will be unnecessary. Therefore, the motion will be denied without

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prejudice to renewal once petitioner has filed the necessary amended pleadings and application to

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proceed in forma pauperis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Petitioner’s request for time to file his petition for writ of habeas corpus

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(Doc. 1) is granted to the extent that petitioner is required to file an actual petition to initiate this

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case;

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2.

The Clerk of the Court shall send petitioner both a blank petition for writ

of habeas corpus and a blank prisoner civil rights form complaint;

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3.

Petitioner shall choose whether he will proceed in this action with a

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petition for writ of habeas corpus appropriately challenging a conviction or whether he will file a

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complaint to proceed in a civil rights action pursuant to 42 U.S.C. § 1983;

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Petitioner shall file his amended pleading within 30 days of the date of

service of this order;

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Petitioner shall also submit on the form provided by the Clerk of the

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Court, within 30 days from the date of this order, a complete application for leave to proceed in

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forma pauperis, with the required certifications, or the appropriate filing fee;

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6.

The Clerk of the Court is further directed to send petitioner a new form

Application to Proceed In Forma Pauperis By a Prisoner;

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7.

Petitioner’s motion for appointment of counsel (Doc. 4) is denied without

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prejudice to renewal once petitioner determines how he will proceed in this action and files the

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appropriate amended pleadings and in forma pauperis application; and

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Petitioner’s motion to amend his complaint (Doc. 5) is denied as

unnecessary.

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DATED: October 30, 2014
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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