Juarez v. Prison CEO

Filing 5

ORDER of Dismissal. Signed by Judge Edward M. Chen on 4/2/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 4/2/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GILBERTO JUAREZ,

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Petitioner,
v.

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For the Northern District of California

United States District Court

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No. C-13-0386 EMC (pr)

PRISON'S CEO; et al.,

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ORDER OF DISMISSAL

Respondents.
___________________________________/

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Petitioner, a prisoner incarcerated at the Correctional Training Facility in Soledad,

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California, filed this civil action using a form petition for writ of habeas corpus for state courts. The

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petition is largely incoherent; those parts of it that can be understood appear to (1) challenge

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Petitioner's 1995 conviction from Santa Clara County Superior Court, (2) complain about a federal

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court clerk's failure to comply with a judge's order, and (3) complain about the resolution of his

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earlier actions in federal court.

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Petitioner's challenge to his 1995 conviction is DISMISSED because he has not obtained

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permission from the Ninth Circuit to file a new petition challenging his conviction. Petitioner's

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earlier habeas petition, Juarez v. Director of Corrections, No. C 05-019 RMW, was dismissed as

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barred by the statute of limitations. As the Court explained in the order of dismissal in Juarez v.

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Prison's CEO, No. 12-2855 EMC, Petitioner cannot file a new action challenging the 1995

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conviction unless and until he obtains from the Ninth Circuit authorizing this Court to consider the

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petition. See 28 U.S.C. § 2244(b)(3)(a).

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Petitioner's claim that a deputy clerk in this Court failed to comply with Judge Ronald
Whyte's order is DISMISSED for failure to state a claim upon which relief may be granted.

("FOIA"). FOIA generally is limited to agencies of the executive branch of the federal government,

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and does not include federal courts. See 5 U.S.C. § 551(1)(B); Warth v. Dep't of Justice, 595 F.2d

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521, 523 (9th Cir. 1979); see also United States v. Miramontez, 995 F.2d 56, 59 n.3 (5th Cir. 1993)

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(federal courts expressly excluded from definition of "agency"). The allegation that the deputy

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clerk's conduct violated FOIA is meritless because FOIA does not apply to her. Construing the

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claim to be a claim under 42 U.S.C. § 1983 would not help Petitioner. A court order, standing alone,

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cannot serve as the basis for liability under 42 U.S.C. § 1983 because such orders do not create

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"rights, privileges, or immunities secured by the Constitution and laws" of the United States, the

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violation of which is an essential element of a § 1983 action. See Green v. McKaskle, 788 F.2d

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For the Northern District of California

Petitioner purports to assert the claim under 5 U.S.C. § 552(a), the Freedom of Information Act

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United States District Court

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1116, 1123-24 (5th Cir. 1986) (remedial decrees are means by which unconstitutional conditions are

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corrected but do not create or enlarge constitutional rights).

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The petition contains a confusing series of allegations about the resolution of several of

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Petitioner's earlier cases filed in this Court. A litigant who is dissatisfied about the resolution of his

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case may file an appeal, but cannot simply file a new action in the district court to complain about

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the outcome in the earlier case. Cf. Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1392-

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93 (9th Cir. 1987) ("To allow a district court to grant injunctive relief against a bankruptcy court or

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the district court . . . would be to permit, in effect, a 'horizontal appeal' from one district court to

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another" that would be improper).

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Finally, it appears that Petitioner wants to assert a FOIA claim. A petition for writ of habeas

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corpus is not the appropriate way to assert a FOIA claim. Petitioner may file a new civil action

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asserting a FOIA claim, which he must prepare on his own as the court does not have a form FOIA

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complaint to send him. Petitioner is cautioned that FOIA does not apply to state agencies. See St.

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Michael's Convalescent Hosp. v. California, 643 F.2d 1369, 1373 (9th Cir. 1981). He may wish to

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pursue any rights he has under the California Public Records Act, see Cal. Gov't Code § 6250 et

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seq., with regard to records held by state agencies.

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For the foregoing reasons, the petition for writ of habeas corpus is DISMISSED. Petitioner's

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in forma pauperis application is GRANTED. (Docket # 3.) The Clerk shall enter judgment and

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close the file.

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IT IS SO ORDERED.

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Dated: April 2, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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