Crump v. Plummer

Filing 28

ORDER DISMISSING CASE. Signed by Judge Richard Seeborg on 12/27/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 12/28/2011)

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*E-Filed 12/28/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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STEVE CRUMP,
Petitioner,

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United States District Court
For the Northern District of California

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No. C 11-4920 RS (PR)
ORDER OF DISMISSAL

v.

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CHARLES PLUMMER,
Respondent.
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This federal action was filed as a petition for writ of habeas corpus because it

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appeared to be a challenge to the lawfulness or duration of petitioner’s incarceration. Upon

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further review, it was unclear whether petitioner was challenging the legality or duration of

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his confinement, or, rather, was bringing a civil rights actions against government officials.

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The Court, accordingly, dismissed the petition with leave to amend. A review of the

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amended petition shows that petitioner sets forth claims of malicious prosecution, false

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arrest, retaliation, and improper withholding of personal property arising from his detention

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and trial on charges of which it appears he was acquitted, rather than challenging the

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lawfulness of his confinement. Therefore, if petitioner prevails here it will not affect the

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length of his incarceration on the new charges under which he is currently detained. This

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means that his claim is not the proper subject of a habeas action, but must be brought as a

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civil rights case under 42 U.S.C. § 1983. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir.

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1991) (habeas corpus action proper mechanism for challenging “legality or duration” of

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No. C 11-4920 RS (PR)
ORDER OF DISMISSAL

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confinement; civil rights action proper method for challenging conditions of confinement);

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

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

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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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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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United States District Court
For the Northern District of California

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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. If petitioner wishes to

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challenge the lawfulness of his detention under the new charges he faces currently, he may

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file a new petition for writ of habeas corpus. The Clerk shall enter judgment in favor of

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respondent, and close the file.

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IT IS SO ORDERED.

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DATED: December 27, 2011
RICHARD SEEBORG
United States District Judge

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No. C 11-4920 RS (PR)
ORDER OF DISMISSAL