Abreu v. Binkele

Filing 11

ORDER DISMISSING CASE and Granting Motion to Proceed In Forma Pauperis 9 . Signed by Chief Judge Joseph C. Spero on 2/14/17. (klhS, COURT STAFF) (Filed on 2/14/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ARMANDO ABREU,

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Petitioner,

Case No. 17-cv-00117-JCS (PR)

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v.

ORDER OF DISMISSAL

United States District Court
Northern District of California

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R. BINKELE,

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Respondent.
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Dkt. No. 9

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INTRODUCTION

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This federal action was filed as a petition for writ of habeas corpus under 28 U.S.C.

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§ 2254, that is, as a challenge to the lawfulness or duration of petitioner incarceration.1 A

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review of the petition, however, shows that petitioner sets forth claims regarding the

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conditions of his confinement, specifically about the amount of food served in prison. If

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he prevails on such claims it will not necessarily affect the length of his incarceration.

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This means that his claim is not the proper subject of a habeas action, but must be brought

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as a civil rights case under 42 U.S.C. § 1983. See Badea v. Cox, 931 F.2d 573, 574 (9th

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Cir. 1991) (habeas corpus action proper mechanism for challenging “legality or duration”

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of confinement; civil rights action proper method for challenging conditions of

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

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Petitioner consented to magistrate judge jurisdiction. (Docket No. 8.) The magistrate
judge, then, has jurisdiction to issue this order, even though respondents have not been
served or consented to magistrate judge jurisdiction. See Neals v. Norwood, 59 F.3d 530,
532 (5th Cir. 1995).

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dismissal of habeas petition on basis that challenges to terms and conditions of

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confinement must be brought in civil rights complaint).
In an appropriate case a habeas petition may be construed as a section 1983

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complaint. Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the Court may

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construe a habeas petition as a civil rights action, it is not required to do so. Since the time

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when the Wilwording case 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, however,

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the fee is now $400 ($350 if IFP status is granted) and under the Prisoner Litigation

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Reform Act the prisoner is required to pay it, even if granted in forma pauperis status, by

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way of deductions from income to the prisoner’s trust account. See 28 U.S.C. § 1915(b).

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United States District Court
Northern District of California

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Also, a civil rights complaint which is dismissed as malicious, frivolous, or for failure to

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

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habeas cases.

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In view of these changes in the law, this federal action is DISMISSED without
prejudice to petitioner filing a civil rights action if he wishes to do so in light of the above.

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Petitioner’s motion to proceed in forma pauperis (Docket No. 9) is GRANTED.

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The Clerk shall terminate Docket No. 9, enter judgment in favor of respondent, and

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close the file.
IT IS SO ORDERED.
Dated: February 14, 2017
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ARMANDO ABREU,

Case No. 17-cv-00117-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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R BINKELE,
Defendant.

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.
That on February 14, 2017, 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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Armando Abreu ID: # H-16924
Salinas Valley State Prison
P. O. Box 1050
Soledad, CA 93960-1050

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Dated: February 14, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO

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