Bush v. Butte County

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 02/07/17 ORDERING that the 5 7 Motion to Proceed IFP is GRANTED; petitioner's application for a writ of habeas corpus is DISMISSED without prejudice; the Court DECLINES to issue COA. (Benson, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA MARCUS BUSH, 12 Petitioner, 13 14 v. No. 2:16-cv-2779 KJN P ORDER BUTTE COUNTY, 15 Respondents. 16 17 Petitioner is housed at the Butte County Jail. Petitioner consented to proceed before the 18 undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner filed a petition for a writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma 20 pauperis. 21 Examination of the in forma pauperis application reveals that petitioner is unable to afford 22 the costs of suit. Accordingly, the application to proceed in forma pauperis is granted. See 28 23 U.S.C. § 1915(a). 24 Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for 25 summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and 26 any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Id. 27 28 A habeas corpus petition under 28 U.S.C. § 2254 is the proper vehicle for a state prisoner’s challenge to the validity or length of his sentence, but challenges to a prisoner’s 1 1 conditions of confinement must be brought through a civil rights action. Wilkinson v. Dotson, 2 544 U.S. 74, 81-82 (2005); Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (adopting “the 3 Supreme Court’s strong suggestion that a § 1983 action is the exclusive vehicle for claims that are 4 not within the core of habeas.”). A civil rights action is the “proper remedy” for a prisoner “who 5 is making a constitutional challenge to the conditions of his prison life, but not to the fact or 6 length of his custody.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). 7 Here, petitioner does not challenge his conviction, the execution of his sentence, or the 8 fact of his custody or incarceration. Rather, petitioner challenges allegedly unsanitary conditions 9 at the Butte County Jail including, but not limited to, food service and grooming. (ECF No. 1 at 10 7.) Such allegations do not implicate the fact or duration of petitioner’s sentence and such claims 11 “must be brought, if at all, under 42 U.S.C. § 1983.” Nettles, 830 F.3d at 925 (citing Preiser, 411 12 U.S. at 487.) Because petitioner’s claims do not sound in habeas, his petition must be summarily 13 dismissed. 14 In addition, the undersigned will not construe petitioner’s filing as a civil rights complaint 15 for multiple reasons. First, it appears that petitioner attempts to bring such claims on behalf of 16 other inmates, perhaps as a class action. Plaintiff, however, is a non-lawyer proceeding without 17 counsel. It is well established that a layperson cannot ordinarily represent the interests of other 18 inmates or a class. See McShane v. United States, 366 F.2d 286 (9th Cir. 1966). This rule 19 becomes almost absolute when, as here, the putative class representative is incarcerated and 20 proceeding pro se. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). In direct terms, 21 plaintiff cannot “fairly and adequately protect the interests of the class,” as required by Rule 22 23(a)(4) of the Federal Rules of Civil Procedure. See Martin v. Middendorf, 420 F. Supp. 779 23 (D. D.C. 1976). Thus, each inmate must file his own civil rights complaint. 24 Second, in order to pursue a civil rights complaint, petitioner must pay the court’s filing 25 fee. Even if petitioner is granted leave to proceed in forma pauperis, he will be required to pay 26 the $350.00 filing fee in installments from his prison trust account. Thus, petitioner should 27 decide whether he wishes to pursue a civil rights action under 42 U.S.C. § 1983, and incur the 28 $350.00 filing fee. 2 1 Finally, petitioner is also pursuing a civil rights action challenging, inter alia, the allegedly 2 unsanitary conditions at the Butte County Jail. Bush v. Butte County Sheriff’s Office, No. 2:16- 3 cv-2844 AC (E.D. Cal.). Petitioner is cautioned that he may not pursue the same allegations in 4 two different cases. 5 6 For all of the above reasons, the court declines to construe the petition as a civil rights complaint, but dismisses the action without prejudice.1 7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. Petitioner’s motion to proceed in forma pauperis is granted; 9 2. Petitioner’s application for a writ of habeas corpus is dismissed without prejudice; and 10 3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 11 § 2253. 12 Dated: February 7, 2017 13 14 15 /bush2779.156 16 17 18 19 20 21 22 23 24 1 25 26 27 28 Petitioner has submitted exhibits on two occasions, December 30, 2016 (212 pages), and January 26, 2017 (104 pages). The court is not a repository for evidence. Evidence should not be submitted to the court until this action reaches an appropriate stage in litigation for the submission of evidence, such as in response to a motion for summary judgment, at trial, or when specifically requested by the Court. Because the exhibits were improperly submitted, and petitioner also submitted numerous exhibits in his pending civil rights action, 2:16-cv-2844 WBS AC, the undersigned will not direct the Clerk to file the instant exhibits in petitioner’s civil rights action. 3

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