Wilson, Jr. v. Muniz

Filing 23

ORDER DIRECTING PLAINTIFF TO FILE NOTICE OF ELECTION. Signed by Magistrate Judge Jacqueline Scott Corley on 11/23/2016. (ahm, COURT STAFF) (Filed on 11/23/2016)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 FREDERICK WILSON, JR., 10 Plaintiff, United States District Court Northern District of California 11 v. 12 Case No. 16-cv-03366-JSC ORDER DIRECTING PLAINTIFF TO FILE NOTICE OF ELECTION WILLIAM L. MUNIZ, 13 Defendant. 14 15 INTRODUCTION 16 Plaintiff, a prisoner at Salinas Valley State Prison (“SVSP”), filed this pro se civil action 17 18 against the SVSP Warden, William L. Muniz.1 For the reasons explained below, the complaint is 19 ordered served upon Defendant. PROCEDURAL HISTORY 20 21 Plaintiff first filed his claims on a federal habeas petition form in the United States District 22 Court for the Eastern District of California. The Eastern District transferred the case to the Central 23 District of California, where Plaintiff was directed to clarify the nature of the action he sought to 24 bring because the pleadings were confusing. (ECF No. 6.) Plaintiff acknowledged that he 25 incorrectly used the federal habeas form to present his claim because he was sent that form by the 26 Eastern District. (ECF No. 7at 2; ECF No. 8 at 2.) The Honorable Dale S. Fischer of the Central 27 1 28 Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 14.) 1 District of California found that Plaintiff wished to pursue a civil action --- not a habeas petition -- 2 - because the gravamen of Plaintiff’s claim is that prison authorities are collecting on a debt 3 illegally under the Fair Debt Collection Practices Act and he is not challenging his conviction or 4 confinement. (ECF No. 8.) The case was transferred back to the Eastern District of California, 5 which then transferred the case to this court because SVSP, where Defendant is located and the 6 actions giving rise to Plaintiff’s claims took place, is located in this District. (ECF Nos. 8, 11.) STANDARD OF REVIEW 7 8 Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 10 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 11 United States District Court Northern District of California 9 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 12 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 13 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 14 F.2d 696, 699 (9th Cir. 1990). 15 16 17 18 19 20 21 22 23 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 1974. LEGAL CLAIMS 25 When liberally construed, Plaintiff’s allegations state a cognizable claim that Defendant 26 William Muniz violated the Fair Debt Collection Practices Act (15 U.S.C. §§ 1692-1692p) by 27 causing prison officials to collect on a debt improperly and without “validation.” However, before 28 2 1 construing a pro se habeas petition as a civil complaint, a district court must advise the prisoner of 2 the consequences of construing a habeas petition as a civil complaint and provide an opportunity 3 to withdraw or amend the complaint. Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016) (en 4 banc). Plaintiff was not warned by the Central or Eastern Districts about the consequences of 5 proceeding with his claims in a civil action instead of a habeas petition. (See ECF Nos. 6, 8, 11.) 6 Consequently, before this Court allows Plaintiff to proceed with this case as a civil action, Plaintiff 7 is warned that doing so will subject him to the “three strikes,” exhaustion, and in forma pauperis 8 provisions of the Prison Litigation Reform Act. These provisions are set forth here: (1) 28 U.S.C. § 1915(g) provides that a prisoner may not bring a civil action or appeal a 9 10 United States District Court Northern District of California 11 12 13 14 judgment in a civil action or proceeding under 28 U.S.C. § 1915 (i.e., may not proceed in forma pauperis) "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury;" (2) 42 U.S.C. § 1997e provides that “[n]o action shall be brought with respect to prison 15 16 17 18 19 20 conditions under [] Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted;” (3) even though Plaintiff is proceeding in forma pauperis, under 28 U.S.C. § 1915(b)(1) he will be required to pay the full amount of the filing fee of $350.00 by way of an "installment plan" that operates as follows: (1) first, the court will assess and collect a partial filing fee from the prisoner;7 (2) after payment of the initial partial filing fee, the prisoner will be required to make monthly payments of 20% of the preceding month's income credited to the prisoner's account. CONCLUSION Within 28 days of the date this order is filed, Plaintiff shall file a notice with the Court 21 indicating whether he elects to: (1) proceed with this action as a civil action notwithstanding the 22 foregoing consequences of doing so; (2) voluntarily dismiss this action; or (3) amend the petition 23 to state a claim that is cognizable in a federal habeas petition. If Plaintiff does not file such a 24 notice, this case will be dismissed without prejudice to Plaintiff bringing his claims in a civil 25 26 27 28 7 The amount of the partial filing fee is equal to 20% of the greater of (a) the average monthly deposits to the prisoner's account for the last six months, or (b) the average monthly balance in the prisoner's account for the last six months. See id. § 1915(b)(1). 3 1 2 3 action at a future date. IT IS SO ORDERED. Dated: November 23, 2016 4 5 JACQUELINE SCOTT CORLEY United States Magistrate Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FREDERICK WILSON, JR., Case No. 16-cv-03366-JSC Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 WILLIAM L. MUNIZ, Defendant. United States District Court Northern District of California 11 12 13 14 15 16 17 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 23, 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. 18 19 20 Frederick Wilson, Jr. ID: Prisoner Id F-29297 High Desert State Prison P.O. Box 3030 Susanville, CA 96127-3030 21 22 23 Dated: November 23, 2016 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Ada Means, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 5

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