Lester v. San Francisco Sheriffs Department et al

Filing 7

ORDER DISMISSING CASE. Signed by Judge Richard Seeborg on 8/19/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 8/19/2011)

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*E-Filed 8/19/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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STEPHEN DWAYNE LESTER,

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No. C 11-1982 RS (PR)

Petitioner,

ORDER OF DISMISSAL

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v.
SAN FRANCISCO SHERIFF’S
DEPARTMENT, et al.,
Respondents.
/

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This federal action was filed as a petition for writ of habeas corpus, that is, as a

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challenge to the lawfulness or duration of petitioner’s incarceration. A review of the petition,

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however, shows that petitioner sets forth claims regarding the treatment he received at the

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hands of his jailors, rather than challenging the lawfulness of his confinement. Therefore, if

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petitioner prevails here it will not affect the length of his incarceration. This means that his

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claim is not the proper subject of a habeas action, but must be brought as a civil rights case

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under 42 U.S.C. § 1983. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (habeas corpus

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action proper mechanism for challenging “legality or duration” of confinement; civil rights

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No. C 11-1982 RS (PR)
ORDER OF DISMISSAL

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action proper method for challenging conditions of confinement); Crawford v. Bell, 599 F.2d

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890, 891–92 & n.1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that

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challenges to terms and conditions of confinement must be brought in civil rights complaint).

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In an appropriate case a habeas petition may be construed as a section 1983 complaint.

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Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the Court may construe a

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habeas petition as a civil rights action, it is not required to do so. Since the time when the

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Wilwording case was decided there have been significant changes in the law. For instance,

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the filing fee for a habeas petition is five dollars; for civil rights cases, however, the fee is

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now $350 and under the Prisoner Litigation Reform Act the prisoner is required to pay it,

United States District Court
For the Northern District of California

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even if granted in forma pauperis status, by way of deductions from income to the prisoner’s

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trust account. See 28 U.S.C. § 1915(b). A prisoner who might be willing to file a habeas

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petition for which he or she would not have to pay a filing fee might feel otherwise about a

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civil rights complaint for which the $350 fee would be deducted from income to his or her

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prisoner account. Also, a civil rights complaint which is dismissed as malicious, frivolous, or

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for failure to state a claim would count as a “strike” under 28 U.S.C. § 1915(g), which is not

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true for habeas cases.

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In view of these potential pitfalls for petitioner if the Court were to construe the

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petition as a civil rights complaint, the case will be dismissed without prejudice to petitioner

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filing a civil rights action if he wishes to do so in light of the above. Petitioner’s motion to

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proceed in forma pauperis in the instant action (Docket Nos. 2 & 5) is GRANTED. The

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Clerk shall enter judgment in favor of respondents, terminate Docket Nos. 2 & 5, and close

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the file.

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IT IS SO ORDERED.
DATED: August 19, 2011
RICHARD SEEBORG
United States District Judge

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No. C 11-1982 RS (PR)
ORDER OF DISMISSAL