Silverman v. Humboldt County Correctional Facility

Filing 9

ORDER OF DISMISSAL (Illston, Susan) (Filed on 1/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JACOB SILVERMAN,
Petitioner,

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ORDER OF DISMISSAL

v.

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Case No. 16-cv-06606-SI

Re: Dkt. No. 1
HUMBOLDT COUNTY CORRECTIONAL
FACILITY,

United States District Court
Northern District of California

Respondent.
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Jacob Silverman, an inmate housed at the Humboldt County Jail in Eureka, California,

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filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition

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does not challenge the fact or duration of his confinement, and instead alleges a claim that the

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ventilation at the jail is inadequate in that the air is too cold and the vents are dusty. His petition

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for writ of habeas corpus is now before the court for review pursuant to 28 U.S.C. § 2243 and

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Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

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A.

Magistrate Judge‟s July 26, 2017 Order Is Vacated

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This action originally was assigned to Magistrate Judge Westmore, and Silverman

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consented to proceed before a magistrate judge. In an order filed July 26, 2017, Magistrate Judge

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Westmore found that the action could not go forward as a habeas action and gave Silverman the

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choice to either (a) consent to convert his petition to a civil rights complaint or (b) withdraw his

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petition. Silverman did not make a choice, and the deadline by which to do so has long passed.

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This action recently was reassigned to the undersigned because a new Ninth Circuit case

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determined that all named parties, including unserved defendants, must consent before a

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magistrate judge has jurisdiction under 28 U.S.C. § 636(c)(1) to hear and decide a case. See

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Williams v. King, 875 F.3d 500, 503 (9th Cir. 2017) (magistrate judge lacked jurisdiction to

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dismiss case on initial review because unserved defendants had not consented to proceed before

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magistrate judge).

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Under the Williams rule, Magistrate Judge Westmore was unable to take dispositive action

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because she did not have the consent of the unserved respondent. To avoid any potential concern

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that the July 26, 2017, order exceeded the magistrate judge‟s authority as now interpreted in

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Williams, the preferable course is to vacate that order and start over. Accordingly, the order filed

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July 26, 2017 (Docket No. 6) is now VACATED.

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B.

Dismissal Is Necessary Because Habeas Relief Is Unavailable For The Claim Asserted

United States District Court
Northern District of California

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

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custody pursuant to the judgment of a State 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). A district court

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considering an application for a writ of habeas corpus shall “award the writ or issue an order

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

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

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This action must be dismissed because the Ninth Circuit has made it clear that federal

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habeas relief is not available for a claim challenging the conditions of confinement, such as is

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asserted in Silverman‟s petition for writ of habeas corpus. See Nettles v. Grounds, 830 F.3d 922,

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934-35 (9th Cir. 2016), cert. denied, 137 S. Ct. 645 (2017). Nettles held that a prisoner‟s claim

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which, if successful, will not necessarily lead to immediate or speedier release from custody falls

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outside the “core of habeas corpus” and must be pursued (if at all) in a civil rights action under 42

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U.S.C. § 1983, rather than in a habeas action. Nettles, 830 F.3d at 927-28.

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Nettles applies to the present action because success on Silverman‟s claim will not

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necessarily lead to immediate or speedier release from custody. That is, if Silverman prevails on

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his claim that the ventilation is inadequate in that the air is too cold or the vents are too dusty, it

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will not necessarily follow that he will be released from jail on a date sooner than otherwise would

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occur. Silverman‟s only potential recourse in federal court is to file a § 1983 complaint.
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In an appropriate case, a habeas petition may be construed as a § 1983 complaint.

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Wilwording v. Swenson, 404 U.S. 249, 251 (1971); see Nettles, 830 F.3d at 935-36. Although the

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court may construe a habeas petition as a civil rights complaint, it is not required to do so. Since

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

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

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$400 (with $50 of that fee reduced if the prisoner is allowed to proceed in forma pauperis). A

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prisoner is now required to pay the fee, even if granted in forma pauperis status, by way of

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deductions from income to the prisoner‟s trust account. See 28 U.S.C. § 1915(b). A prisoner who

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

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

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United States District Court
Northern District of California

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

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

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habeas cases. Further, Silverman‟s petition is not amenable to conversion because it does not

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name the proper defendant. See Nettles, 830 F.3d at 936 (quoting Glaus v. Anderson, 408 F.3d

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382, 388 (7th Cir. 2005)) (in order to be converted, petition must be “„amenable to conversion on

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its face, meaning that it names the correct defendants and seeks the correct relief.‟”)

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In view of these potential pitfalls for Silverman if the court were to construe the petition as

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a civil rights complaint, and because it appears he does not name the correct defendant, the court

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declines to construe the petition as a civil rights complaint. This action is DISMISSED without

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prejudice to Silverman filing a complaint under 42 U.S.C. § 1983 to challenge the adequacy of the

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ventilation at the county jail. The court is not making a decision on the merits of Silverman‟s

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claim, but only determining that he has filed the wrong sort of case in which to assert it.

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The in forma pauperis application is GRANTED. Docket No. 4.

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The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: January 9, 2018
______________________________________
SUSAN ILLSTON
United States District Judge
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