Medina v. Lewis
Filing
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ORDER DISMISSING CASE. Signed by Judge Richard Seeborg on 11/15/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 11/15/2011)
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*E-Filed 11/15/11*
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
United States District Court
For the Northern District of California
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FERNANDO MEDINA,
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No. C 11-3421 RS (PR)
Petitioner,
ORDER OF DISMISSAL
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v.
G.D. LEWIS, Warden,
Respondent.
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This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se
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state prisoner. Petitioner alleges that respondent violated his due process and First
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Amendment rights consequent to a disciplinary hearing. As a result of the hearing, petitioner
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was denied canteen privileges for 30 days, and deprived of property and photocopying rights.
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This action was filed as a petition for writ of habeas corpus, that is, as a challenge to
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the lawfulness or duration of petitioner’s incarceration. A review of the petition, however,
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shows that petitioner sets forth claims regarding the treatment he received at the hands of his
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jailors rather than challenging the lawfulness or duration 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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No. C 11-3421 RS (PR)
ORDER OF DISMISSAL
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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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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.
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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United States District Court
For the Northern District of California
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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,
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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. The Clerk shall enter
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judgment in favor of respondent, and close the file.
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IT IS SO ORDERED.
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DATED: November 15, 2011
RICHARD SEEBORG
United States District Judge
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No. C 11-3421 RS (PR)
ORDER OF DISMISSAL
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