Zarate v. Lewis et al

Filing 3


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 MANUEL ZARATE, Petitioner, 5 6 7 v. GREG LEWIS, Warden, et al. Respondents. 8 9 No. C 12-6143 CW (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND; DIRECTING CLERK TO PROVIDE PETITIONER WITH CIVIL RIGHTS COMPLAINT FORM AND IN FORMA PAUPERIS APPLICATION ________________________________/ 10 United States District Court For the Northern District of California Petitioner, a state prisoner, has filed a pro se petition for 11 a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging 12 his validation as a gang member and resulting indeterminate 13 retention in the Secured Housing Unit (SHU) at Pelican Bay State 14 Prison (PBSP) for more than twenty years. 15 Petitioner previously filed a habeas petition in this court 16 challenging the confiscation of his mail by prison officials and 17 18 the placement in his prison file of alleged false information concerning his gang affiliation. See Zarate v. Lewis, C 10-4727 19 CW (PR). 20 to dismiss the petition and found Petitioner’s claims not 21 cognizable because (1) he had failed to show how the confiscation 22 of his mail affects the fact or duration of his custody and, 23 therefore, such claim must be brought under 42 U.S.C. § 1983 and 24 not in a habeas petition, (2) his allegations that the documents 25 referring to his gang membership may result in a delay or denial 26 of parole involve discretionary decisions too speculative to state 27 a claim for habeas corpus relief and he has no liberty interest in 28 the precise accuracy of his prison files under § 1983, and (3) his On March 20, 2012, the Court granted Respondent’s motion 1 allegations of violations of state law do not present 2 constitutional claims for habeas corpus relief or under § 1983. 3 Consequently, the Court entered judgment in favor of Respondent. 4 In so doing, the Court explained to Petitioner that he could raise 5 his federal constitutional claims in a civil rights action. 6 7 8 9 United States District Court For the Northern District of California 10 Thereafter, Petitioner moved for reconsideration of the order of dismissal, arguing that the Court had misconstrued the nature of his claims because his intent was to challenge his validation as a gang member and indeterminate sentence in the SHU based on the contents of the confiscated mail and the placement of false information in his prison file. He argued such claim can be 11 brought in a habeas corpus action because his indeterminate 12 retention in the SHU affects his ability to become eligible for 13 parole. The Court denied Petitioner’s motion, finding as follows: 14 15 16 17 18 19 20 21 22 23 As explained to Petitioner previously, the Ninth Circuit has held that “habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence.” Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). In particular, where, as here, a prisoner’s successful challenge to his administrative segregation will not necessarily shorten his sentence, habeas jurisdiction does not lie. See id. In this case, even if Petitioner is successful in attacking his gang validation, expunging the records from his prison file and terminating his confinement in the SHU, “[t]he parole board will still have the authority to deny [his] request[ ] for parole on the basis of any of the grounds presently available to it in evaluating such a request.” Id. (internal quotation and citation omitted). Because a successful claim would not necessarily result in Petitioner’s release on parole, he may not proceed with his claim by way of federal habeas corpus. 24 25 26 Order at 3:10-26. In the present petition, Petitioner presents essentially the 27 same arguments raised in his prior petition and motion for 28 reconsideration. He seeks habeas corpus relief and expungement of 2 1 the false information from his prison file. His arguments appear 2 to be grounded in the First Amendment and the due process clause 3 of the Fourteenth Amendment. For the reasons discussed in the orders dismissing the first 5 petition and denying reconsideration, Petitioner’s claims are not 6 cognizable in federal habeas corpus because the relief he seeks 7 would not necessarily shorten his sentence. 8 Galaza, 334 F.3d 850, 859 (9th Cir. 2003). 9 proceed with these claims he must do so in a civil rights action. 10 United States District Court For the Northern District of California 4 Where a prisoner files a habeas petition attacking the See Ramirez v. Thus, if he wishes to 11 conditions of his confinement the district court may construe such 12 petition as a civil rights action under § 1983. 13 Swenson, 404 U.S. 249, 251 (1971). 14 unless Petitioner affirmatively informs the Court that he wants 15 this case to proceed as a civil rights action, because § 1983 16 actions filed by prisoners are subject to certain statutory 17 requirements of which Petitioner should be aware before deciding 18 to proceed with a § 1983 action. 19 filed by prisoners are subject to a requirement that the claims be 20 administratively exhausted. 21 such cases are subject to a $350.00 filing fee, rather than the 22 $5.00 dollar filing fee for habeas cases, see 28 U.S.C. § 1914(a), 23 and the fee must be paid even if IFP status is granted, by way of 24 deductions from the prisoner’s trust account until the full 25 $350.00 fee is paid. 26 See Wilwording v. The Court will not do so here In particular, § 1983 cases See 42 U.S.C. § 1997e(a). Further, See 28 U.S.C. § 1915(b). Accordingly, this case is DISMISSED with leave to amend for 27 Petitioner to file a civil rights complaint. 28 so, the case will be dismissed without prejudice. 3 Should he fail to do 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. This case is DISMISSED with leave to amend. If 4 Petitioner intends to allege a cause of action under 42 U.S.C. 5 § 1983, he must do so by filing a civil rights complaint no later 6 than thirty days from the date of this Order. 7 court’s civil rights form, write the case number for this action 8 (C 12-6143 CW (PR)) on the form and complete all sections of the 9 form. United States District Court For the Northern District of California 10 2. He must use the Petitioner has not filed an application to proceed IFP. 11 As noted above, the filing fee for a civil rights action is 12 $350.00. 13 rights action, Petitioner must, no later than thirty days from the 14 date of this Order, pay the $350.00 filing fee or file a completed 15 application for leave to proceed IFP. 16 3. Accordingly, before this case can proceed as a civil The failure to file a completed civil rights form and to 17 pay the filing fee or file the requisite IFP documents within the 18 thirty day deadline shall result in the dismissal of this action 19 without prejudice. 20 The Clerk of the Court shall send Petitioner a blank civil 21 rights form and the Court’s prisoner IFP application form along 22 with a copy of this Order. 23 IT IS SO ORDERED. 24 25 26 Dated: 12/28/2012 CLAUDIA WILKEN United States District Judge 27 28 4

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