Fisher v. Brown

Filing 8

ORDER DISMISSING CASE. Signed by Judge William H. Orrick on 04/29/2014. (jmdS, COURT STAFF) (Filed on 4/29/2014)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
10

GARY FISHER,

Case No. 14-cv-01174-WHO (PR)

Petitioner,
11
United States District Court
Northern District of California

v.

ORDER REOPENING ACTION;

12
13

ORDER OF DISMISSAL

J. BROWN,
Respondent.

14
15
16

This federal habeas action was dismissed because petitioner Fisher failed to perfect

17

his application to proceed in forma pauperis ("IFP") or pay the filing fee. Fisher has since

18

filed a complete IFP application, which the Court construes as containing a motion to

19

reopen. So construed, it is GRANTED. The action is REOPENED, and the Clerk is

20

directed to amend the docket accordingly. The judgment (Docket No. 5) and the order of

21

dismissal (Docket No. 4) are VACATED. The IFP application (Docket No. 6) is

22

GRANTED.

23

This action was filed as a petition for writ of habeas corpus, that is, as a

24

challenge to the lawfulness or duration of Fisher's incarceration. A review of the petition,

25

however, shows that Fisher sets forth claims regarding the conditions of his confinement at

26

Pelican Bay and Sacramento State Prisons, rather than challenging the lawfulness or

27

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

28

necessarily the length of his incarceration. This means that his claims are not the proper

1

subject of a habeas action, but must be brought as a civil rights case under 42 U.S.C.

2

§ 1983. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (habeas corpus action proper

3

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

4

method for challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890, 891–

5

92 & n.1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to

6

terms and conditions of confinement must be brought in civil rights complaint).
In an appropriate case a habeas petition may be construed as a section 1983

8

complaint. Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the Court may

9

construe a habeas petition as a civil rights action, it is not required to do so. Since the time

10

when the Wilwording case was decided there have been significant changes in the law. For

11
United States District Court
Northern District of California

7

instance, the filing fee for a habeas petition is five dollars; for civil rights cases, however,

12

the fee is now $350 and under the Prisoner Litigation Reform Act the prisoner is required

13

to pay it, even if granted in forma pauperis status, by way of deductions from income to

14

the prisoner’s trust account. See 28 U.S.C. § 1915(b). A prisoner who might be willing to

15

file a habeas petition for which he or she would not have to pay a filing fee might feel

16

otherwise about a civil rights complaint for which the $350 fee would be deducted from

17

income to his or her prisoner account. Also, a civil rights complaint which is dismissed as

18

malicious, frivolous, or for failure to state a claim would count as a “strike” under 28

19

U.S.C. § 1915(g), which is not true for habeas cases.

20

In view of these potential pitfalls for petitioner if the Court were to construe the

21

petition as a civil rights complaint, the case is DISMISSED without prejudice to Fisher

22

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

23

terminate Docket No. 6, enter judgment in favor of respondent, and close the file.

24
25

IT IS SO ORDERED.
Dated: April 29, 2014
_________________________
WILLIAM H. ORRICK
United States District Judge

26
27
28
2