Bjurberg v. Hanlon

Filing 2

ORDER DISMISSING CASE. Signed by Judge Richard Seeborg on 2/28/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 2/28/2014)

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*E-Filed 2/28/14*

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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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United States District Court
For the Northern District of California

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No. C 13-5323 RS (PR)

GEORGE A. BJURBERG,

ORDER OF DISMISSAL

Petitioner,
v.
MARK HANLON,

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Respondent.
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INTRODUCTION

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Petitioner seeks federal habeas relief from his current pretrial detention. The petition

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for such relief is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of

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the Rules Governing Section 2254 Cases. For the reasons stated herein, the petition is

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DISMISSED.

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DISCUSSION

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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A district court considering an application for a writ of habeas corpus shall “award the writ

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No. C 13-5323 RS (PR)
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or issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

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the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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As grounds for federal habeas relief, petitioner alleges that (1) his pretrial detention is

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unconstitutional because it is based on a false arrest by corrupt officials; and (2) he is

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suffering under unconstitutional conditions of confinement. Both claims are DISMISSED.

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As to the first claim, the Court abstains from interfering in the on-going state criminal

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proceedings. Under principles of comity and federalism, a federal court should not interfere

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with ongoing state criminal proceedings by granting injunctive or declaratory relief absent

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extraordinary circumstances. See Younger v. Harris, 401 U.S. 37, 43–54 (1971). More

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specifically, federal courts should not enjoin pending state criminal prosecutions absent a

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showing of the state’s bad faith or harassment, or a showing that the statute challenged is

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“flagrantly and patently violative of express constitutional prohibitions.” Id. at 46, 53-54.

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Younger abstention is required when (1) state proceedings, judicial in nature, are pending;

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(2) the state proceedings involve important state interests; and (3) the state proceedings

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afford adequate opportunity to raise the constitutional issue. See Middlesex County Ethics

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Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).

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Abstention is appropriate here because all of the elements of Younger are present.

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Nothing in the petition suggests there are extraordinary circumstances requiring this Court’s

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interference in state court criminal proceedings. (His allegations of corruption and false

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arrest are entirely conclusory and unsupported.) As to the first Younger element, the

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record demonstrates that petitioner’s state court proceedings are ongoing. As to the second

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Younger element, the Supreme Court has held that “a proper respect for state functions,”

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such as ongoing criminal trial proceedings, is an important issue of state interest. See Preiser

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v. Rodriguez, 411 U.S. 475, 491–92 (1973) (quoting Younger, 401 U.S. at 44). As to the

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No. C 13-5323 RS (PR)
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third prong of Younger, the Court finds no reason that plaintiff cannot pursue his

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constitutional claims in state court. Furthermore, any interference by this Court in the state

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court proceedings would cause results disapproved of by Younger. SJSVCCPAC v. City of

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San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008) (citing cases). Thus, Younger abstention is

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applicable here. When Younger applies, and the party seeks injunctive relief, as petitioner

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does here by asking the Court to order his release,1 federal courts should dismiss the action in

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its entirety. See Colorado River Water Conserv. Dist. v. U.S., 424 U.S. 800, 816 n.22 (1976).

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Accordingly, the first claim is DISMISSED.

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As to the second claim, petitioner challenges the conditions of his confinement, rather

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

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the length of his incarceration. This means that his claim is not the proper subject of a

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habeas action, but must be brought as a civil rights action under 42 U.S.C. § 1983. See

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Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (habeas corpus action proper mechanism for

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challenging “legality or duration” of confinement; civil rights action proper method for

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challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890, 891–92 & n.1 (9th

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Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and

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conditions of confinement must be brought in civil rights complaint).

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In an appropriate case a habeas petition may be construed as a section 1983 complaint.

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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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now $350 and under the Prisoner Litigation Reform Act the prisoner is required to pay it,

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Though petitioner does not explicitly ask for release, the Court infers that he implicitly
does so. This inference is well-supported. First, he filed this habeas petition. A habeas petition
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is by its nature a challenge to the legality and duration of confinement. Second, he alleges that
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release from custody.
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No. C 13-5323 RS (PR)
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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. In view of these potential pitfalls for petitioner if the Court were to

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construe the petition as a civil rights complaint, the case will be dismissed without prejudice

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to petitioner filing a civil rights action if he wishes to do so in light of the above. The second

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claim is therefore DISMISSED.
The petition is DISMISSED. The Clerk shall enter judgment in favor of respondent,
and close the file.
IT IS SO ORDERED.
DATED: February 28, 2014
RICHARD SEEBORG
United States District Judge

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No. C 13-5323 RS (PR)
ORDER OF DISMISSAL