Washington v. Cates et al

Filing 4

ORDER DISMISSING CASE. Signed by Judge William Alsup on 9/28/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 9/28/2011)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 12 13 No. C 11-4333 WHA (PR) TOROMI R. WASHINGTON, 11 For the Northern District of California United States District Court 10 Petitioner, ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS vs. MATTHEW CATES, Warden, (Docket No. 3) 14 Respondent. / 15 16 Petitioner, an inmate in a state prison in Arizona proceeding pro se, filed this petition for 17 a writ of habeas corpus under 28 U.S.C. 2254. Petitioner is not challenging his conviction or 18 sentence. Rather, he seeks an order directing officials of the California Department of 19 Corrections and of the Arizona prison to “rescind” his status and an inmate who should be 20 assigned to a “special needs yard.” 21 “Federal law opens two main avenues to relief on complaints related to imprisonment: a 22 petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 23 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to the lawfulness of 24 confinement or to particulars affecting its duration are the province of habeas corpus." 25 Muhammad v. Close, 540 U.S. 749, 750 (2004). Petitioner’s claims involve the conditions of 26 his confinement and not the fact or duration of his confinement. As such, they are not the 27 proper subject of a habeas action. See Moran v. Sondalle, 218 F.3d 647, 650-52 (7th Cir. 28 2000); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil rights action is proper method of challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir. 1 1979) (affirming dismissal of habeas petition on basis that challenges to terms and conditions of 2 confinement must be brought in civil rights complaint). 3 In an appropriate case a habeas petition may be construed as a Section 1983 complaint. 4 Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the court may construe a habeas 5 petition as a civil rights action, it is not required to do so. Since the time when the Wilwording 6 case was decided there have been significant changes in the law. For instance, the filing fee for 7 a habeas petition is five dollars, and if leave to proceed in forma pauperis is granted, the fee is 8 forgiven. For civil rights cases, however, the fee is now $350 and under the Prisoner Litigation 9 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)(1). A 11 For the Northern District of California United States District Court 10 prisoner who might be willing to file a habeas petition for which he or she would not have to 12 pay a filing fee might feel otherwise about a civil rights complaint for which the $350 fee would 13 be deducted from income to his or her prisoner account. Also, a civil rights complaint which is 14 dismissed as malicious, frivolous, or for failure to state a claim would count as a “strike” under 15 28 U.S.C. 1915(g), which is not true for habeas cases. 16 In view of these potential pitfalls for petitioner if the petition were construed as a civil 17 rights complaint, the case is DISMISSED without prejudice to petitioner filing a civil rights 18 action if he wishes to do so in light of the above. In light of petitioner’s lack of funds, his 19 application to proceed in forma pauperis (docket number 3) is GRANTED. 20 Petitioner has failed to make a substantial showing that his claims amounted to a denial 21 of his constitutional rights or demonstrate that a reasonable jurist would find the denial of his 22 claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no 23 certificate of appealability is warranted in this case. 24 The clerk shall close the file. 25 IT IS SO ORDERED. 26 Dated: September 28 , 2011. 27 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 28 G:\PRO-SE\WHA\HC.11\WASHINGTON4333.DSM.wpd. 2

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