McKinney v. Biter

Filing 4

ORDER OF DISMISSAL. Signed by Magistrate Judge Laurel Beeler on 2/25/2016. (lsS, COURT STAFF) (Filed on 2/25/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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ALONZO MCKINNEY,

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Case No. 15-cv-05153-LB

Petitioner,
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v.

ORDER OF DISMISSAL

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[Re: ECF No. 1 ]

M. D. BITER,

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Respondent.
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INTRODUCTION

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Alonzo McKinney, an inmate at the Kern Valley State Prison, filed this pro se action for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. McKinney consented to proceed before a

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magistrate judge. (ECF No. 1 at 10-11.)1 His petition is now before the court for review pursuant

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to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States

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District Courts. This order dismisses the action because most of Mr. McKinney‟s claims cannot be

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pursued in a habeas action and the one claim that might be appropriate in a habeas action must be

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pursued in another district.

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Citations are to the Electronic Case File (“ECF”); pin cites are to the ECF-generated page
numbers at the tops of the documents.

STATEMENT

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Mr. McKinney alleges in his petition that he currently is serving a sentence of an unstated

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length for a 1997 conviction from Los Angeles County Superior Court. (ECF No. 1 at 2.) Mr.

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McKinney‟s petition does not challenge that conviction; instead his claims pertain to prison

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conditions and perhaps a different criminal case.

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The petition for writ of habeas corpus alleges claims about many different things. Mr.
McKinney identified eight claims in his petition: (1) prison officials at Folsom State Prison failed

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to investigate a prison official who allegedly falsified a report that Mr. McKinney is a gang

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member; (2) Mr. McKinney is entitled to a kosher diet and to practice Judaism; (3) Mr. McKinney

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was denied access and a telephone call to the Monterey County Superior Court in 2011-2012; (4)

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United States District Court
Northern District of California

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Mr. McKinney was denied a witness at a hearing at Salinas Valley State Prison at which he

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received a term in the security housing unit (SHU), and his property and mail were destroyed; (5)

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he was denied postage stamps; (6) he was subjected to “selective & vindictive prosecution,” had

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“inadequate counsel” and other problems in Lassen County (id. at 7); (7) he was denied an

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evidentiary hearing on the other claims; and (8) he was denied discovery in earlier actions.

ANALYSIS

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

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

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the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. Hodges,

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423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing the

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respondent to show cause why the writ should not be granted, unless it appears from the

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application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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1. Claims Other Than Claim 6

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“„Federal law opens two main avenues to relief on complaints related to imprisonment: a

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petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871,

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Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of any confinement or

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to particulars affecting its duration are the province of habeas corpus.‟” Hill v. McDonough, 547

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U.S. 574, 579 (2006) (quoting Muhammad v. Close, 540 U.S. 749, 750 (2004)). “An inmate‟s
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challenge to the circumstances of his confinement, however, may be brought under § 1983.” Id.
“[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a

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prison condition will not necessarily shorten the prisoner‟s sentence.” Ramirez v. Galaza, 334 F.3d

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850, 859 (9th Cir. 2003). In addition, the practice in the Ninth Circuit long has been that

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challenges to conditions of confinement be brought in a civil rights complaint. See Badea v. Cox,

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931 F.2d 573, 574 (9th Cir. 1991) (civil rights action proper method of challenging conditions of

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confinement); Crawford v. Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir. 1979) (affirming dismissal

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of habeas petition because challenges to terms and conditions of confinement must be brought as

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civil rights complaint).
Other than Claim 6, which is discussed in the next section, Mr. McKinney‟s petition does not

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United States District Court
Northern District of California

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attempt to challenge either the fact of his conviction or the length of his sentence. Most of the

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claims pertain to the conditions of his confinement, and success on those claims would not result

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in his release from prison nor shorten his stay in prison. Specifically, success on his claims that a

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falsified report was issued (Claim 1), he wants to engage in religious practices (Claim 2); he was

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denied access to court during litigation in 2011-2012 (Claim 3); his right to due process was

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violated at a disciplinary hearing at his former prison (Claim 4); and he was denied postage stamps

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(Claim 5) would not end or shorten his stay in prison. Two other claims do not challenge

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conditions of confinement, but also are of the sort that will not affect the fact or duration of Mr.

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McKinney‟s confinement. Specifically, success on his claim that he was denied an evidentiary

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hearing (Claim 7) and denied discovery (Claim 8) would not end or shorten Mr. McKinney‟s stay

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in prison.2 Each of these claims must be pursued in a civil rights action under 42 U.S.C. § 1983 if

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it is to be pursued in federal court.
Those civil rights actions should be filed in the proper districts. Venue generally is proper in a

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judicial district in which any defendant resides or in a judicial district in which a substantial part of

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the events or omissions giving rise to the claim occurred. See 28 U.S.C. § 1391(b). A civil rights

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It also is doubtful that Claim 7 or Claim 8 would be cognizable in a civil rights action, but it is
premature for the court to rule on that question. Today, the court only determines that Claim 7 and
Claim 8 do not state claims cognizable in a federal habeas action.
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complaint about the conditions of confinement at Folsom State Prison in Sacramento County

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generally should be filed in the Eastern District of California. A civil rights complaint about the

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conditions of confinement at Kern Valley State Prison in Kern County generally should be filed in

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the Eastern District of California. A civil rights complaint about the conditions of confinement at

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Salinas Valley State Prison in Monterey County generally should be filed in the Northern District

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of California.

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Although a district court may construe a habeas petition by a prisoner attacking the conditions

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of his confinement as pleading civil rights claims under 42 U.S.C. § 1983, Wilwording v. Swenson,

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404 U.S. 249, 251 (1971), the court declines to do so here. The difficulty with construing a habeas
petition as a civil rights complaint is that the two forms used by most prisoners request different

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United States District Court
Northern District of California

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information and much of the information necessary for a civil rights complaint is not included in

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the habeas petition filed here. Examples of the potential problems created by using the habeas

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petition form rather than the civil rights complaint form include the potential omission of intended

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defendants, potential failure to link each defendant to the claims, and potential absence of an

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adequate prayer for relief. Additionally, there is doubt whether the prisoner is willing to pay the

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civil action filing fee of $ 350.00 (plus a $50.00 administrative fee) rather than the $5.00 habeas

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filing fee to pursue his claims. The habeas versus civil rights distinction is not just a matter of

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using different pleading forms. A habeas action differs in many ways from a civil rights action:

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(1) a habeas petitioner has no right to a jury trial on his claims, (2) the court may be able to make

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credibility determinations based on the written submissions of the parties in a habeas action,

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(3) state court (rather than administrative) remedies must be exhausted for the claims in a habeas

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action, (4) the proper respondent in a habeas action is the warden in charge of the prison, but he or

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she might not be able to provide the desired relief when the prisoner is complaining about a

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condition of confinement, and (5) damages cannot be awarded in a habeas action. It is not in the

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interest of judicial economy to allow prisoners to file civil rights actions and claims on habeas

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forms because virtually every such case, including this one, will be defective at the outset and

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require additional court resources to deal with the problems created by the different filing fees and

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the absence of information on the habeas form.
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2. Claim 6 - Lassen County Prosecution
The only claim in the petition that might belong in a habeas action is Claim 6, in which Mr.

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McKinney alleges he was subjected to selective and vindictive prosecution, had inadequate

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counsel and other problems in Lassen County. (ECF No. 1 at 7.) The reason the court states that

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Claim 6 “might” rather than “does” belong in a habeas petition is because it is not clear from the

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petition whether Mr. McKinney actually suffered a conviction and is in custody pursuant to a

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judgment from the Lassen County Superior Court. A person must be in custody under the

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conviction or sentence under attack at the time the petition is filed. Maleng v. Cook, 490 U.S. 488,

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490-91 (1989). The court will not require Mr. McKinney to amend to clarify whether he can meet
the custody requirement for a habeas petition, however. Regardless of whether it is pursued in a

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United States District Court
Northern District of California

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habeas action or a civil rights action, the claim needs to be pursued in the Eastern District of

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California.

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Venue is proper in a habeas action in either the district of confinement or the district of convic-

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tion, 28 U.S.C. § 2241(d); however, a petition challenging a conviction or the sentence imposed is

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preferably heard in the district of conviction. See N. D. Cal. Habeas L.R. 2254-3(b); see also

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Dannenberg v. Ingle, 831 F. Supp. 767, 768 (N.D. Cal. 1993) (“Although concurrent jurisdiction

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to address a petition for writ of habeas corpus exists in both the district of incarceration and in the

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district of conviction, 28 U.S.C. § 2241(d), traditionally, California federal courts hear petitions

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for a writ of habeas corpus in the district of conviction.”) Here, Mr. McKinney is currently

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confined in Kern County and challenges a Lassen County conviction (assuming a conviction

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occurred). Kern County and Lassen County are within the venue of the Eastern District of

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California. The Northern District of California is not the proper venue for a habeas action filed by

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a prisoner who is confined in the Eastern District of California and wants to challenge a conviction

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that was obtained in a county in the Eastern District of California.

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If Mr. McKinney was prosecuted but never convicted, or if his conviction has been set aside,

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he might be able to pursue Claim 6 in a civil rights action. The proper venue for a civil rights

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action pertaining to events in Lassen County would be the Eastern District of California, where the

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defendants would be located and a substantial part of the events or omissions would have
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occurred. See 28 U.S.C. § 1391(b). Nothing is alleged in the petition suggesting that venue for

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such a claim would be proper in the Northern District of California.

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When an action is filed in the wrong district, the court “shall dismiss, or if it be in the interest

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of justice, transfer such case to any district or division in which it could have been brought.” 28

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U.S.C. § 1406(a). It is not in the interest of justice to transfer the petition to the Eastern District of

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California because it will need immediate and extensive amendment. It is preferable for the court

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to dismiss this action so that Mr. McKinney can determine whether his Claim 6 should be pursued

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in a civil rights complaint or a habeas petition. Once he makes that decision, he can file the proper

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pleading in the Eastern District of California providing all the requested information on the form.
CONCLUSION

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United States District Court
Northern District of California

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This action is DISMISSED without prejudice. All claims other than Claim 6 are dismissed

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without prejudice to Mr. McKinney filing new civil rights complaints asserting such claims in the

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proper districts. Claim 6 is dismissed without prejudice to Mr. McKinney filing a petition for writ

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of habeas corpus or civil rights complaint in the Eastern District of California.

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Mr. McKinney‟s in forma pauperis application is GRANTED. (ECF No. 3.)

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The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: February 25, 2016

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______________________________________
LAUREL BEELER
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALONZO MCKINNEY,

Case No. 3:15-cv-05153-LB

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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M. D. BITER,
Defendant.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on February 25, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Alonzo McKinney ID: K-74846
Kern Valley State Prison D-6-122
P.O. Box 5104
Delano, CA 93216

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Dated: February 25, 2016

Susan Y. Soong
Clerk, United States District Court
By:________________________
Lashanda Scott, Deputy Clerk to the
Honorable LAUREL BEELER

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