Barrow v. People of the State of Calfornia et al

Filing 5

ORDER of Dismissal by Chief Magistrate Judge Elizabeth D. Laporte. This action is DISMISSED without prejudice to plaintiffs re-filing as apetition for habeas corpus pursuant to 28 U.S.C. § 2254 after he has completed exhausting his state remedies. The Clerk shall terminate all pending motions and close the file. (Attachments: # 1 Certificate of Service)(shyS, COURT STAFF) (Filed on 8/27/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RAEKUBIAN ALEXANDER BARROW,

ORDER OF DISMISSAL

v.

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No. C 14-2572 EDL (PR)

Plaintiff,

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PEOPLE OF THE STATE OF
CALIFORNIA, et al.,
Defendants.
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For the Northern District of California

United States District Court

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Plaintiff, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C.
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§ 1983. Plaintiff’s motion for leave to proceed in forma pauperis is granted in a separate
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order. For the reasons stated below, plaintiff’s complaint is DISMISSED.
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DISCUSSION
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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity.
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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and
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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may
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be granted or seek monetary relief from a defendant who is immune from such relief. See
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28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See
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Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
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elements: (1) that a right secured by the Constitution or laws of the United States was
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violated, and (2) that the alleged violation was committed by a person acting under the
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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
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B.

Legal Claims
In his complaint, plaintiff raises claims related to his underlying criminal conviction.

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Specifically, plaintiff raises a claim of ineffective assistance of counsel and argues that the

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police reports were false. Plaintiff also claims that some of the witnesses committed

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perjury.

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“‘Federal law opens two main avenues to relief on complaints related to

Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to

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the lawfulness of confinement or to particulars affecting its duration are the province of

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habeas corpus.’” Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v.

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For the Northern District of California

imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the

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United States District Court

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Close, 540 U.S. 749, 750 (2004)). Habeas is the “exclusive remedy” for the prisoner who

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seeks “‘immediate or speedier release’” from confinement. Skinner v. Switzer, 131 S. Ct.

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1289, 1293 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). “Where the

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prisoner’s claim would not ‘necessarily spell speedier release,’ however, suit may be

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brought under § 1983.’” Skinner, 131 S. Ct. at 1293 (quoting Wilkinson, 544 U.S. at 82).

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As a consequence, challenges to prison conditions have traditionally been cognizable only

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via § 1983, while challenges implicating the fact or duration of confinement must be brought

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through a habeas petition. Docken v. Chase, 393 F.3d 1024, 1026 (9th Cir. 2004).

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Here, plaintiff is not challenging the conditions of his confinement. He is attacking

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the lawfulness of his confinement altogether. Because plaintiff’s claims, if successful, could

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affect the duration of his custody, and the determination of the claims could result in

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entitlement to an earlier release, plaintiff’s claims must be brought in a habeas corpus

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proceeding. See Ramirez v. Galaza, 334 F.3d 850, 858-59 (9th Cir. 2003) (implying that a

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claim, which if successful would “necessarily” or “likely” accelerate the prisoner’s release on

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parole, must be brought in a habeas petition).

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CONCLUSION
Accordingly, this action is DISMISSED without prejudice to plaintiff’s re-filing as a

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petition for habeas corpus pursuant to 28 U.S.C. § 2254 after he has completed exhausting

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his state remedies. The Clerk shall terminate all pending motions and close the file.

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IT IS SO ORDERED.
Dated: August 26 , 2014.
ELIZABETH D. LAPORTE
United States Chief Magistrate Judge

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For the Northern District of California

United States District Court

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