Lopez v. Lewis et al

Filing 8

ORDER OF DISMISSAL 6 . This action for a writ of habeas corpus is DISMISSED without prejudice to Lopez filing a civil rights action under 42 U.S.C. § 1983, preferably using the court's civil rights complaint form. (Illston, Susan) (Filed on 5/29/2012) Modified on 5/29/2012 (ysS, COURT STAFF). (Additional attachment(s) added on 5/29/2012: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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JOSE CARLOS LOPEZ,

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No. C 11-5177 SI (pr)

Petitioner,

ORDER OF DISMISSAL

v.
D. LEWIS, Warden,
Respondent.
/

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INTRODUCTION

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Jose Carlos Lopez, an inmate at Pelican Bay State Prison, commenced this action by

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filing a petition for writ of habeas corpus in which he urged that his constitutional rights were

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violated during proceedings in 2009-2010 to validate him as a gang affiliate and his resulting

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placement in administrative segregation ("ad-seg"). The court ordered respondent to show cause

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why the petition should not be granted. Respondent has moved to dismiss and Lopez has

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opposed the motion to dismiss. The court will dismiss this action without prejudice to Lopez

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filing a civil rights action.

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DISCUSSION

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Respondent argues that the petition must be dismissed for lack of habeas corpus

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jurisdiction because Lopez's claims do not affect the fact or duration of his confinement.

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(Respondent also presents other arguments in support of his motion to dismiss, but the court does

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not reach them in light of the success of the first argument.)

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"'Federal law opens two main avenues to relief on complaints related to imprisonment:

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a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of

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1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of any

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confinement or to particulars affecting its duration are the province of habeas corpus.'" Hill v.

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McDonough, 547 U.S. 574, 579 (2006) (quoting Muhammad v. Close, 540 U.S. 749, 750

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(2004)). "An inmate's challenge to the circumstances of his confinement, however, may be

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brought under § 1983." Id.
Where a successful challenge to a prison condition will not necessarily shorten the

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United States District Court
For the Northern District of California

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prisoner's sentence, a civil rights action under 42 U.S.C. § 1983 is proper and habeas jurisdiction

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is absent. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). In addition, the preferred

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practice in the Ninth Circuit has been that challenges to conditions of confinement be brought

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in a civil rights complaint. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil rights

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action proper method of challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890,

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891-92 & n.1 (9th Cir. 1979) (affirming dismissal of habeas petition because challenges to terms

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and conditions of confinement must be brought as civil rights complaint).

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In this action, Lopez challenges prison officials's decision to validate him as a gang

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affiliate and place him in ad-seg. The petition does not attempt to challenge either the fact of

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his conviction or the length of his sentence. Rather, it goes entirely to the conditions of his

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confinement, and success in this action would not result in his release from prison nor shorten

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his stay in prison. Lopez's claims must be pursued in a civil rights action. See Palma-Salazar

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v. Davis, — F.3d –, 2012 WL 1511775, *6 (10th Cir. May 1, 2012) (federal prisoner's challenge

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to transfer to ad-seg must be brought pursuant to Bivens, rather than as a habeas action).

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The indeterminate nature of Lopez's underlying sentence has significance in light of a

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recent amendment to the California Penal Code.1 Effective January 25, 2010, an inmate housed

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Lopez is in custody serving a 27-years-to-life sentence imposed in 1998. See Order
Granting Partial Summary Judgment, p. 2, filed May 10, 2007, in Lopez v. Horel, Case No. 0628 4772 NJV.
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in the security housing unit and/or ad-seg "upon validation as a prison gang member or associate

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is ineligible to earn" certain conduct credits against his sentence. Cal. Penal Code § 2933.6(a).

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A prisoner serving a set term of years who loses credit-earning eligibility due to his placement

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in the SHU or ad-seg due to gang validation may be able to show that such placement affects the

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duration of his confinement and therefore may be able to pursue a claim in habeas. The same

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cannot be said for an inmate serving an indeterminate sentence. Lopez, as an indeterminate life

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prisoner, must pursue his claim in a civil rights action because § 2933.6 does not affect the

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duration of his confinement on that sentence.
Although a district court may construe a habeas petition by a prisoner attacking the

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United States District Court
For the Northern District of California

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conditions of his confinement as pleading civil rights claims under 42 U.S.C. § 1983,

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Wilwording v. Swenson, 404 U.S. 249, 251 (1971), the court declines to do so here. The

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difficulty with construing a habeas petition as a civil rights complaint is that the two forms used

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by most prisoners request different information and much of the information necessary for a civil

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rights complaint is not included in the habeas petition filed here. Examples of the potential

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problems created by using the habeas petition form rather than the civil rights complaint form

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include the potential omission of intended defendants, potential failure to link each defendant

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to the claims, and potential absence of an adequate prayer for relief. Additionally, there is doubt

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whether the prisoner is willing to pay the $350.00 civil action filing fee rather than the $5.00

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habeas filing fee to pursue his claims. The habeas versus civil rights distinction is not just a

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matter of using different pleading forms. A habeas action differs in many ways from a civil

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rights action: (1) a habeas petitioner has no right to a jury trial on his claims, (2) the court may

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be able to make credibility determinations based on the written submissions of the parties in a

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habeas action, (3) state court (rather than administrative) remedies must be exhausted for the

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claims in a habeas action, (4) the proper respondent in a habeas action is the warden in charge

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of the prison, but he or she might not be able to provide the desired relief when the prisoner is

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complaining about a condition of confinement, and (5) damages cannot be awarded in a habeas

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action. While a prisoner may think he has found a loophole that allows him to save $345.00 –

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by filing a habeas petition with a $5.00 fee rather than the usual $350.00 fee for a civil action
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– the loophole proves unhelpful because he ultimately cannot proceed in habeas and will be

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charged the $350.00 filing fee to challenge conditions of confinement. It is not in the interest

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of judicial economy to allow prisoners to file civil rights actions on habeas forms because

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virtually every such case, including this one, will be defective at the outset and require additional

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court resources to deal with the problems created by the different filing fees and the absence of

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information on the habeas form.

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CONCLUSION
For the foregoing reasons, respondent's motion to dismiss is GRANTED. This action for

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United States District Court
For the Northern District of California

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a writ of habeas corpus is DISMISSED without prejudice to Lopez filing a civil rights action

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under 42 U.S.C. § 1983, preferably using the court's civil rights complaint form.

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IT IS SO ORDERED.
Dated: May 29, 2012

_______________________
SUSAN ILLSTON
United States District Judge

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