Romero v. Jaquez

Filing 2

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 10/28/10. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 11/1/2010)

Romero v. Jaquez

Doc. 2

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No. C 10-4817 RS (PR) ORDER OF DISMISSAL

*E-Filed 11/1/10*

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

RUBEN A. ROMERO, Petitioner, v. FRANCISCO JAQUEZ, Respondent. /

No. C 10-4817 RS (PR) ORDER OF DISMISSAL

This federal action was filed as a petition for writ of habeas corpus. Petitioner, however, admits that this action does not challenge his conviction or the length of his sentence. A review of the petition confirms this, as petitioner sets forth claims regarding administrative grievances related to the recovery of personal property. If petitioner prevails here it will not affect the length of his incarceration. This means this his claim is not the proper subject of a habeas action, but must be brought as a civil rights case under 42 U.S.C. § 1983. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (habeas corpus action proper mechanism for challenging "legality or duration" of confinement; civil rights action proper method for challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890, 891­92

Dockets.Justia.com

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& n.1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and conditions of confinement must be brought in civil rights complaint). In an appropriate case a habeas petition may be construed as a section 1983 complaint. Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the Court may construe a habeas petition as a civil rights action, it is not required to do so. Since the time when the Wilwording case was decided there have been significant changes in the law. For instance, the filing fee for a habeas petition is five dollars; for civil rights cases, however, the fee is now $350 and under the Prisoner Litigation Reform Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of deductions from income to the prisoner's trust account. See 28 U.S.C. § 1915(b). A prisoner who might be willing to file a habeas petition for which he or she would not have to pay a filing fee might feel otherwise about a civil rights complaint for which the $350 fee would be deducted from income to his or her prisoner account. Also, a civil rights complaint which is dismissed as malicious, frivolous, or for failure to state a claim would count as a "strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases. In view of these potential pitfalls for petitioner if the Court were to construe the petition as a civil rights complaint, the case will be dismissed without prejudice to petitioner filing a civil rights action if he wishes to do so in light of the above. The Clerk shall enter judgment in favor of respondent, and close the file. IT IS SO ORDERED. DATED: October 28, 2010 RICHARD SEEBORG United States District Judge

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No. C 10-4817 RS (PR) ORDER OF DISMISSAL