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)

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