Smith v. Lewis

Filing 2

ORDER OF DISMISSAL. The case is dismissed without prejudice to petitioner filing a civil rights action. a Signed by Judge William H. Orrick on 10/29/2013. (jmdS, COURT STAFF) (Filed on 10/29/2013)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 12 13 14 15 JARMAAL SMITH, Petitioner, v. Case No. 13-cv-03092-WHO (PR) ORDER OF DISMISSAL CRAIG LEWIS, Respondent. 16 17 This federal action was filed as a petition for writ of habeas corpus. Upon review, it 18 is clear that the petitioner, Jarmaal Smith, challenges the conditions of confinement, rather 19 than the legality or duration of his incarceration. Therefore, if Smith prevails here it will 20 not affect the length of his incarceration on the new charges under which he is currently 21 detained. This means that his claim is not the proper subject of a habeas action, but must 22 be brought as a civil rights case under 42 U.S.C. § 1983. See Badea v. Cox, 931 F.2d 573, 23 574 (9th Cir. 1991); Crawford v. Bell, 599 F.2d 890, 891–92 & n.1 (9th Cir. 1979). 24 In an appropriate case a habeas petition may be construed as a section 1983 25 complaint. Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the Court may 26 construe a habeas petition as a civil rights action, it is not required to do so and there are 27 reasons why the plaintiff might not want the Court to do so. Since the time when 28 Wilwording was decided there have been significant changes in the law. For instance, the 1 filing fee for a habeas petition is five dollars; for civil rights cases, however, the fee is now 2 $350 and under the Prisoner Litigation Reform Act the prisoner is required to pay it, even 3 if granted in forma pauperis status, by way of deductions from income to the prisoner’s 4 trust account. See 28 U.S.C. § 1915(b). A prisoner who might be willing to file a habeas 5 petition for which he or she would not have to pay a filing fee might feel otherwise about a 6 civil rights complaint for which the $350 fee would be deducted from income to his or her 7 prisoner account. Also, a civil rights complaint which is dismissed as malicious, frivolous, 8 or for failure to state a claim would count as a “strike” under 28 U.S.C. § 1915(g), which is 9 not true for habeas cases. In view of these potential pitfalls for Smith if the Court were to construe the petition 11 United States District Court Northern District of California 10 as a civil rights complaint, the case will be dismissed without prejudice to him filing a civil 12 rights action if he wishes to do so in light of the above. The Clerk shall enter judgment in 13 favor of respondent, and close the file. 14 IT IS SO ORDERED. 15 Dated: October 29, 2013 _________________________ WILLIAM H. ORRICK United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JARMAAL SMITH, Case Number: CV13-03092 WHO Plaintiff, CERTIFICATE OF SERVICE v. GREG LEWIS et al, Defendant. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 29, 2013, I SERVED a true and correct copy of the attached, by placing said copy in a postage paid envelope addressed to the person hereinafter listed, by depositing said envelope in the U.S. Mail. Jarmaal Smith T76804 Pelican Bay State Prison SHU/C-12 #214 P.O. Box 7500 Crescent City, CA 95532 Dated: October 29, 2013 Richard W. Wieking, Clerk By: Jean Davis, Deputy Clerk

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