Steed v. King et al

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND; DIRECTING CLERK OF THE COURT TO PROVIDE PETITIONER WITH CIVIL RIGHTS FORM AND PRISONERS IN FORMA PAUPERIS APPLICATION. Amended Pleadings due by 9/4/2012.. Signed by Judge Claudia Wilken on 8/7/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 8/7/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DERRICK D. STEED,

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Petitioner,

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No. C 12-3423 CW (PR)
ORDER OF DISMISSAL WITH LEAVE
TO AMEND; DIRECTING CLERK OF
THE COURT TO PROVIDE PETITIONER
WITH CIVIL RIGHTS FORM AND
PRISONER’S IN FORMA PAUPERIS
APPLICATION

v.
T. KING, Associate Warden, et
al.,
Respondents.

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/

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This case was commenced when Petitioner filed a petition for a

United States District Court
For the Northern District of California

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writ of habeas corpus in which he challenges his indeterminate
placement in the Pelican Bay State Prison Security Housing Unit.
He seeks declaratory and injunctive relief overturning his
validation as a gang member and ordering his release from the SHU.
Petitioner has also filed an application to proceed in forma
pauperis (IFP).
DISCUSSION

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A.

Standard of Review
This Court may entertain a petition for a writ of habeas

corpus “in behalf of a person in custody pursuant to the judgment
of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States.”
(1975).

28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21
A district court shall “award the writ or issue an order

directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the applicant
or person detained is not entitled thereto.”

28 U.S.C. § 2243.

Summary dismissal is appropriate only where the allegations in the

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petition are vague or conclusory, palpably incredible, or patently

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frivolous or false.

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(9th Cir. 1990) (quoting Blackledge v. Allison,

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(1977)).

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B.

See Hendricks v. Vasquez, 908 F.2d 490, 491
431 U.S. 63, 75-76

Petitioner’s Claim

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Petitioner alleges his Fourteenth Amendment rights were

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violated when he was validated as a gang member and placed in the

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SHU for an indeterminate period on the basis of insufficient and

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unreliable evidence.

As noted, Petitioner seeks declaratory and

United States District Court
For the Northern District of California

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injunctive relief that would overturn his gang validation and

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compel his release from the SHU.

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Petitioner’s claims are not cognizable in federal habeas

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corpus.

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complaints related to imprisonment: a petition for habeas corpus,

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28 U.S.C. § 2254, and a complaint under the Civil Rights Act of

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1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983.

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to the lawfulness of confinement or to particulars affecting its

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duration are the province of habeas corpus.’”

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547 U.S. 573, 579 (2006) (quotation and citation omitted).

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inmate’s challenge to the circumstances of his confinement,

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however, may be brought under § 1983.”

“‘Federal law opens two main avenues to relief on

Challenges

Hill v. McDonough,
“An

Id.

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While the Supreme Court has not addressed whether a challenge

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to a condition of confinement may be brought in habeas corpus, see

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Docken v. Chase, 393 F.3d 1024, 1028 (9th Cir. 2004), the Ninth

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Circuit has held that “habeas jurisdiction is absent, and a § 1983

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action proper, where a successful challenge to a prison condition

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will not necessarily shorten the prisoner’s sentence.”

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Galaza, 334 F.3d 850, 859 (9th Cir. 2003).
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Ramirez v.

In particular, where,

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as here, a petitioner’s successful challenge to his administrative

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segregation will not necessarily shorten his sentence, habeas

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jurisdiction does not lie.

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See id.

Where a prisoner files a habeas petition attacking the

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conditions of his confinement the district court may construe such

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petition as a civil rights action under § 1983.

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Swenson, 404 U.S. 249, 251 (1971).

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however, unless Petitioner affirmatively informs the Court that he

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wants this case to proceed as a civil rights action.

See Wilwording v.

The Court will not do so here,

Because

United States District Court
For the Northern District of California

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§ 1983 cases filed by prisoners are subject to certain statutory

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requirements of which Petitioner should be aware before deciding to

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proceed with a § 1983 action, the Court will not construe the

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petition as a § 1983 action without Petitioner’s consent.

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particular, § 1983 cases filed by prisoners are subject to a

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requirement that the claims be administratively exhausted.

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U.S.C. § 1997e(a).

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filing fee, rather than the $5.00 dollar filing fee for habeas

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cases, see 28 U.S.C. § 1914(a), and the fee must be paid even if

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IFP status is granted, by way of deductions from the prisoner’s

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trust account until the full $350.00 fee is paid.

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§ 1915(b).

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the instant action treated as a § 1983 case.

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In

See 42

Further, such cases are subject to a $350.00

See 28 U.S.C.

For these reasons, Petitioner might not seek to have

Accordingly, this case is DISMISSED with leave to amend for

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Petitioner to allege a cause of action under § 1983.

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fail to do so, the case will be dismissed without prejudice.

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Should he

CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

This case is DISMISSED with leave to amend.
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If Petitioner intends to allege a cause of action under 42

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U.S.C. § 1983, he must do so no later than twenty-eight days from

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the date of this Order.

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write the case number for this action (C 12-3423 CW (PR)) on the

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form and complete all sections of the form.

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2.

He must use the court’s civil rights form,

Petitioner has not filed an application to proceed IFP,

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but has informed the Court that he intends to pay the $5.00 habeas

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corpus filing fee.

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rights action is $350.00.

United States District Court
For the Northern District of California

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As noted above, the filing fee for a civil

Accordingly, before this case can proceed as a civil rights

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action, Petitioner must, no later than twenty-eight days from the

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date of this Order, pay the $350.00 filing fee or file a completed

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application for leave to proceed IFP.

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3.

The failure to file a completed civil rights form and to

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pay the filing fee or file the requisite IFP documents within the

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twenty-eight day deadline shall result in the dismissal of this

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action without prejudice.

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The Clerk of the Court shall send Petitioner a blank civil

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rights form and the Court’s prisoner IFP application form along

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with a copy of this Order.

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IT IS SO ORDERED.

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Dated:

8/7/2012

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CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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