Downs v. Beard

Filing 7

ORDER signed by Magistrate Judge Kendall J. Newman on 4/22/15 granting 5 Motion to Proceed IFP. The petition for writ of habeas corpus is dismissed without prejudice. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY DOWNS,

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No. 2:15-cv-0611 KJN P

Petitioner,
v.

ORDER

JEFFREY BEARD,

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Respondent.

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Petitioner is a state prisoner proceeding without counsel. Petitioner consented to proceed

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before the undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner filed a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254, with an application to proceed in forma

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pauperis.

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Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See

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28 U.S.C. § 1915(a).

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First, this lawsuit is brought by petitioner as a class action. Petitioner, however, is a non-

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lawyer proceeding without counsel. It is well established that a layperson cannot ordinarily

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represent the interests of a class. See McShane v. United States, 366 F.2d 286 (9th Cir. 1966).

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This rule becomes almost absolute when, as here, the putative class representative is incarcerated

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and proceeding pro se. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). In direct
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terms, petitioner cannot “fairly and adequately protect the interests of the class,” as required by

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Rule 23(a)(4) of the Federal Rules of Civil Procedure. See Martin v. Middendorf, 420 F. Supp.

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779 (D.D.C. 1976). This action, therefore, will not be construed as a class action and instead will

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be construed as an individual civil suit brought by petitioner.

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Second, petitioner alleges violations of his right to equal protection and due process, and

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violations of the Americans with Disability Act (“ADA”) and Section 504 of the Rehabilitation

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Act, and the Individuals with Disabilities in Education Act (“IDEA”). (ECF No. 1 at 1.)

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However, such allegations do not sound in habeas. Petitioner’s allegations challenge the

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conditions of confinement, rather than the fact or duration of petitioner’s confinement; thus, no

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habeas jurisdiction is present. Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003) (“habeas

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jurisdiction is absent and a [civil rights] action proper, where a successful challenge to a prison

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condition will not necessarily shorten the prisoner’s sentence”). Because the court does not have

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jurisdiction over petitioner’s challenge to the conditions of confinement, the petition is dismissed

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without prejudice.

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The court has discretion to construe the petition as a civil rights complaint. See

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Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (holding that district courts have discretion to

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construe a habeas petition attacking conditions of confinement as a complaint under 42 U.S.C.

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§ 1983 despite deliberate choice by petitioner to proceed on habeas), superseded by statute on

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other grounds as recognized in Woodford v. Ngo, 548 U.S. 81, 84 (2006). However, provisions

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of the Prison Litigation Reform Act of 1995 (“PLRA”) may make it inappropriate to construe a

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habeas petition as a civil rights complaint. Due to the PLRA’s filing fee requirements, its

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provisions requiring sua sponte review of complaints, and its limits on the number of actions a

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prisoner may be permitted to file in forma pauperis,1 a prisoner should not be obligated to proceed

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with a civil rights action unless the prisoner clearly wishes to do so. See 28 U.S.C. §§ 1915 &

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1915A; 42 U.S.C. § 1997e; Bunn v. Conley, 309 F.3d 1002, 1007 (7th Cir. 2002) (stating that

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According to the court’s electronic case files, petitioner has filed five civil rights cases in the
Eastern District of California: Case Nos. 2:09-cv-0714 GBC; 2:09-cv-1105 KJN; 2:12-cv-3057
MCE CKD; 2:14-cv-0605 MCE CMK; and 2:15-cv-1507 KJN.
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courts should not re-characterize nature of prisoner’s claim because PLRA and AEDPA created

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“pitfalls of different kinds for prisoners using the wrong vehicle”). Thus, the petition is dismissed

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without prejudice instead of converting the claims into a 42 U.S.C. § 1983 action, or allowing

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petitioner to file a civil rights complaint in this action.

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Because the court lacks jurisdiction over the habeas petition, the court declines to address
the accompanying motions (ECF Nos. 2 & 3).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to proceed in forma pauperis (ECF No. 5) is granted; and

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2. The petition for writ of habeas corpus is dismissed without prejudice.

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Dated: April 22, 2015

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