Arreola v. Crabtree

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Yvonne Gonzalez Rogers on 2/19/2013. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 2/19/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

Petitioner,

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No. C 12-06512 YGR (PR)

MANUEL ARREOLA,

v.
OFFICER CRABTREE,
Respondent.

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United States District Court
For the Northern District of California

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This case was commenced when Petitioner filed a document captioned "Petition For A Writ
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of Habeas Corpus." Petitioner alleges that prison officials at Salinas Valley State Prison have
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violated his constitutional rights, including the following: "property damaged and intentionally lost,
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denied prefared [sic] access to the courts, [and] retaliation by staff . . . ." (Pet. at 11.) Petitioner has
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also filed an application to proceed in forma pauperis (IFP).
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The petition does not challenge either the fact of Petitioner's conviction or the length of his
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sentence. Rather, it goes entirely to the conditions of his confinement. A federal civil rights claim
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under 42 U.S.C. § 1983, rather than a federal habeas petition, is the proper way to raise such claims.
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See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil rights action proper method of
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challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir.
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1979) (affirming dismissal of habeas petition because challenges to terms and conditions of
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confinement must be brought as civil rights complaint). To state a claim under § 1983, a plaintiff
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must allege two essential elements: (1) that a right secured by the Constitution or laws of the United
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States was violated, and (2) that the alleged violation was committed by a person acting under the
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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
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While a district court may construe a habeas petition by a prisoner attacking the conditions of
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his confinement as pleading civil rights claims under 42 U.S.C. § 1983, see Wilwording v. Swenson,
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404 U.S. 249, 251 (1971), it is not appropriate to do so in this case. The habeas petition does not
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include the information necessary to state a civil rights violation. It does not link the named

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respondent to the claim, does not state who actually committed the violation complained of, does not

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include a prayer for relief, such as damages or injunctive relief or both. It was not accompanied by

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the correct filing fee for a civil rights case. Accordingly, the Court directs Petitioner to file a civil

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rights complaint on the attached civil rights complaint form, stating his claims for relief, if he wishes

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to go forward with this action as a civil rights action. The failure to file a completed civil rights

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complaint as directed below will result in the dismissal of this action without prejudice.

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Before filing his complaint, Petitioner must ensure that he has exhausted all of his

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administrative remedies. The Prison Litigation Reform Act of 1995 (PLRA) amended 42 U.S.C.

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§ 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42

United States District Court
For the Northern District of California

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U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.

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§ 1997e(a). Although once within the discretion of the district court, exhaustion in prisoner cases

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covered by 1997e(a) is now mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). All available

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remedies must now be exhausted; those remedies "need not meet federal standards, nor must they be

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'plain, speedy, and effective.'" Id. (citation omitted). Even when the prisoner seeks relief not

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available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.;

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Booth v. Churner, 532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all prisoner

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suits about prison life, whether they involve general circumstances or particular episodes, and

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whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532. The PLRA's

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exhaustion requirement requires "proper exhaustion" of available administrative remedies.

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Woodford v. Ngo, 548 U.S. 81, 94 (2006).

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The State of California provides its prisoners the right to appeal administratively "any

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departmental decision, action, condition or policy perceived by those individuals as adversely

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affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). It also provides them the right to file

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appeals alleging misconduct by correctional officers and officials. Id. 3084.1(e). In order to exhaust

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available administrative remedies within this system, a prisoner must proceed through several levels

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of appeal: (1) informal resolution; (2) formal written appeal on a CDC 602 inmate appeal form;

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(3) second level appeal to the institution head or designee; and (4) third level appeal to the Director
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of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F. Supp. 1235,

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1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's

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level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.

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CONCLUSION

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For the foregoing reasons, Petitioner's case is DISMISSED with leave to amend. Petitioner

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must file his complaint no later than twenty-eight (28) days from the date of this Order. Petitioner

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must write the case number for this action -- Case No. C 12-06512 YGR (PR) -- on the form and

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complete all sections of the form. Petitioner is particularly directed to name as defendants each

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person who caused a violation of his constitutional rights and explain what each person did to cause

United States District Court
For the Northern District of California

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the violation. Liability under § 1983 arises only upon a showing of personal participation by the

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defendant. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). There is no respondeat superior

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liability under § 1983, i.e., no liability under the theory that a supervisor is responsible for the

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actions or omissions of his or her subordinate. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.

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1988) (liability may be imposed on individual defendant under § 1983 only if plaintiff can show that

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defendant proximately caused deprivation of federally protected right).

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Because Petitioner originally filed this case as a habeas corpus action, his IFP application is

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DENIED without prejudice to filing a new application or paying the full filing fee. The filing fee for

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a civil rights action is $350.00. Petitioner must pay the $350.00 filing fee, or file an application for

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leave to proceed IFP, before this action may proceed. If Petitioner is a prisoner who alleges that he

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is unable to pay the full filing fee at the time of filing, he must submit: (1) an affidavit that includes a

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statement of all assets he possesses, and (2) a certified copy of the trust fund account statement for

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the prisoner for the six-month period immediately preceding the filing of the action, obtained from

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the appropriate official of each prison at which the prisoner is or was confined. See 28 U.S.C.

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§ 1915(a)(1), (2). If the district court determines that the prisoner is unable to pay the full filing fee

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at the time of filing, the prisoner will be granted leave to proceed IFP. This means that the filing fee

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must be paid by way of an installment plan, according to which the court first will assess and collect

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a partial filing fee from the prisoner, and then the prisoner will be required to make monthly

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payments of twenty percent of the preceding month's income credited to the prisoner's account until
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the full $350.00 filing fee is paid. Id. § 1915(b)(1). The agency having custody of the prisoner is

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responsible for forwarding to the court payments from the prisoner's account each time the amount

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in the account exceeds ten dollars. See id. Accordingly, Petitioner is hereby ORDERED to pay the

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requisite $350.00 filing fee in this action no later than twenty-eight (28) days from the date of this

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Order. He shall include with his payment a clear indication that it is for the above-referenced case

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number, Case No. C 12-06512 YGR (PR). In the event that Petitioner is unable to pay the filing fee,

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he shall submit an IFP application, trust account statement and certificate of funds no later than

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twenty-eight (28) days from the date of this Order.
Failure to file a completed civil rights form and to pay the filing fee or file the requisite

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United States District Court
For the Northern District of California

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documents within the twenty-eight-day deadline shall result in dismissal of this action without

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prejudice.

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The Clerk of the Court shall send Petitioner a blank civil rights form and the Court's prisoner
IFP application form along with his copy of this Order.

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This Order terminates Docket no. 3.

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IT IS SO ORDERED.

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DATED: February 19, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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