Kao v. Davis

Filing 8

ORDER OF DISMISSAL re 5 Order. Signed by Judge Richard Seeborg on 8/3/2016. (Document signed).(afmS, COURT STAFF) (Filed on 8/4/2016)

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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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CHUNG KAO,

No. C 15-02908 RS (PR)

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Petitioner,

ORDER OF DISMISSAL

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v.
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RONALD DAVIS, Warden,
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Respondent.
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This federal habeas action cannot proceed and will be dismissed. Petitioner seeks

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federal relief from a prison disciplinary decision. When he filed this action, a petition for

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writ of habeas corpus was a possible method by which to obtain such relief. This is no

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longer so. Now, the federal relief he seeks can be obtained only through a civil rights action

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brought under 42 U.S.C. § 1983. Nettles v. Grounds, No. 12-16935, 2016 WL 3997255, at

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*5–*6 (9th Cir. July 26, 2016) (claims regarding prison disciplinary decisions are not within

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“the core of habeas corpus” and now must be brought under section 1983, “if at all”).

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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

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Wilwording was decided there have been significant changes in the law. For instance, the

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No. C 15-02908 RS (PR)
ORDER OF DISMISSAL

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

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$400 1 and under the Prisoner Litigation Reform Act the prisoner is required to pay it, even if

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granted in forma pauperis status, by way of deductions from income to the prisoner’s trust

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account. See 28 U.S.C. § 1915(b). A prisoner who might be willing to file a habeas petition

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for which he or she would not have to pay a filing fee might feel otherwise about a civil

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rights complaint for which the $400 fee would be deducted from income to his or her

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prisoner account. Also, a civil rights complaint that is dismissed as malicious, frivolous, or

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for failure to state a claim counts as a “strike” under 28 U.S.C. § 1915(g), which is not true

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for habeas cases.

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Two other considerations militate against this Court construing the petition as a

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section 1983 suit. First, prior to filing a section 1983 suit, a prisoner-plaintiff must exhaust

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his claims administratively through his prison’s grievance system. 42 U.S.C. § 1997e(a). An

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unexhausted section 1983 complaint must be dismissed, Vaden v. Summerhill, 449 F.3d

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1047, 1051 (9th Cir. 2006), therefore this Court may not stay the current action to allow

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petitioner to exhaust. Second, the petition is not amendable to conversion because it does not

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name the proper defendant. Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005). In view

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of these potential pitfalls for petitioner if the Court were to construe the petition as a civil

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rights complaint, this action is DISMISSED without prejudice to petitioner filing a section

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1983 action.

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Respondent’s motion to dismiss (Docket No. 4), which rests on habeas law, is

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DENIED as moot. The Clerk shall terminate Docket No. 4, enter judgment in favor of

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respondent, and close the file.

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IT IS SO ORDERED.

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DATED: August 3, 2016
RICHARD SEEBORG
United States District Judge

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If petitioner is granted IFP status, the total fee will be $350.00.
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No. C 15-02908 RS (PR)
ORDER OF DISMISSAL