Bone v. Wilson

Filing 7

ORDER DISMISSING CASE. Signed by Chief Magistrate Judge Joseph C. Spero on 4/10/17. (klhS, COURT STAFF) (Filed on 4/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONALD D. BONE,

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Petitioner,

Case No. 17-cv-01401-JCS (PR)

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v.

ORDER OF DISMISSAL

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W. WILSON, et al.,

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Respondents.
United States District Court
Northern District of California

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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 inadequacy of the prison law library

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and prison staff reading petitioner’s confidential documents. If he prevails on such claims

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it will not necessarily affect the length of his incarceration. This means that his claims are

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not the proper subject of a habeas action, but must be filed as part of a civil rights action

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under 42 U.S.C. § 1983. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (habeas

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corpus action proper mechanism for challenging “legality or duration” of confinement;

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civil rights action proper method for challenging conditions of confinement); Crawford v.

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Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir. 1979) (affirming dismissal of habeas petition on

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basis that challenges to terms and conditions of confinement must be brought in civil rights

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complaint).

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Petitioner consented to magistrate judge jurisdiction. (Docket No. 6.) 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).

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 pauper 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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A prisoner who might be willing to file a habeas petition for which he or she would not

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have to pay a filing fee might feel otherwise about a civil rights complaint for which the

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United States District Court
Northern District of California

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$400 fee would be deducted from income to his or her prisoner account. Also, a civil

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rights complaint which is dismissed as malicious, frivolous, or for failure to state a claim

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would count as a “strike” under 28 U.S.C. § 1915(g), which is not true for 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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The Court notes that the filing fee has been paid. (Dkt. No. 5.)

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The Clerk shall enter judgment in favor of respondents, and close the file.

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IT IS SO ORDERED.

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Dated: April 10, 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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DONALD D. BONE,

Case No. 17-cv-01401-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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W. WILSON, et al.,
Defendants.

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 April 10, 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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Donald D. Bone ID: ID: P-30877
Golden State Modified Community Correctional Facility
611 Frontage Road
McFarland, CA 93250

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Dated: April 10, 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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