Calihan v. Giurbina et al

Filing 5

ORDER OF DISMISSAL; GRANTING 2 MOTION for Leave to Proceed in forma pauperis. Signed by Judge Jeffrey S. White on 10/4/11. (jjoS, COURT STAFF) (Filed on 10/4/2011)

1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT

7
8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9
KENNY R. CALIHAN,

11
For the Northern District of California

United States District Court

10

12
13

Petitioner,

G. GIURBINO, et al.,

18
19
20
21
22
23
24
25
26
27
28

(Docket No. 2)

Respondents.
/

15

17

ORDER OF DISMISSAL;
GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS

v.

14

16

No. C 11-4729 JSW (PR)

Petitioner, a California prisoner proceeding pro se, filed this petition for a writ of
habeas corpus under 28 U.S.C. § 2254. The claims in the petition do not challenge
Petitioner’s conviction or sentence, but rather the conditions of his confinement. In
particular, he objects to prison officials’ decisions regarding his transfer from one prison
to another.
“Federal law opens two main avenues to relief on complaints related to
imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the
Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges
to the lawfulness of confinement or to particulars affecting its duration are the province
of habeas corpus." Muhammad v. Close, 540 U.S. 749, 750 (2004). Petitioner’s claims
involve the conditions of his confinement and not the fact or duration of his confinement.
As such, they are not the proper subject of a habeas action. See Moran v. Sondalle, 218
F.3d 647, 650-52 (7th Cir. 2000); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil

1

rights action is proper method of challenging conditions of confinement); Crawford v.

2

Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir. 1979) (affirming dismissal of habeas petition

3

on basis that challenges to terms and conditions of confinement must be brought in civil

4

rights complaint).

5

In an appropriate case a habeas petition may be construed as a Section 1983

6

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

7

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

8

time when the Wilwording case was decided there have been significant changes in the

9

law. For instance, the filing fee for a habeas petition is five dollars, and if leave to
proceed in forma pauperis is granted, the fee is forgiven. For civil rights cases, however,

11
For the Northern District of California

United States District Court

10

the fee is now $350 and under the Prisoner Litigation Reform Act the prisoner is

12

required to pay it, even if granted in forma pauperis status, by way of deductions from

13

income to the prisoner’s trust account. See 28 U.S.C. 1915(b)(1). A prisoner who might

14

be willing to file a habeas petition for which he or she would not have to pay a filing fee

15

might feel otherwise about a civil rights complaint for which the $350 fee would be

16

deducted from income to his or her prisoner account. Also, a civil rights complaint

17

which is dismissed as malicious, frivolous, or for failure to state a claim would count as a

18

“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 petition were construed as a

19
20

civil rights complaint, the case is DISMISSED without prejudice to Petitioner filing a

21

civil rights action if he wishes to do so in light of the above. Furthermore, Petitioner has

22

failed to make a substantial showing that his claims amounted to a denial of his

23

constitutional rights and that a reasonable jurist would find this Court's denial of his

24

claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently,

25

no certificate of appealability is warranted in this case.

26

//

27

//

28
2

1

Leave to proceed in forma pauperis (docket number 2) is GRANTED.

2

The Clerk shall enter judgment in favor of respondent and close the file.

3

IT IS SO ORDERED.

4
5
6

DATED: October 4, 2011
JEFFREY S. WHITE
United States District Judge

7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

1

UNITED STATES DISTRICT COURT

2

FOR THE

3

NORTHERN DISTRICT OF CALIFORNIA

4
5
KENNY R CALIHAN,

Case Number: CV11-04729 JSW

Plaintiff,

CERTIFICATE OF SERVICE

6
7
v.

8
G GIURBINO et al,

9
Defendant.

11
For the Northern District of California

United States District Court

10

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.

12 District Court, Northern District of California.
13 That on October 4, 2011, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
14 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

15
16
17 Kenny R. Calihan
F17158

18 P.O. Box 409060
Ione, CA 95640

19
20
21
22
23
24
25
26
27
28

Dated: October 4, 2011
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk