McCowan v. Trust Account Office Staff and Supervisor et al

Filing 9

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; DISMISSING PETITION WITHOUT PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY: Motions terminated: 8 Motion filed by Vincent P. McCowan, 5 Motion for Leave to Proceed in forma pauperis filed by Vincent P. McCowan. Signed by Magistrate Judge Donna M. Ryu on 10/11/16. (ig, COURT STAFF) (Filed on 10/11/2016)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 VINCENT P. McCOWAN, Petitioner, 9 10 v. United States District Court Northern District of California 11 TRUST ACCOUNT OFFICE STAFF AND SUPERVISORS, et al., 12 Case No. 16-cv-02147-DMR (PR) ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; DISMISSING PETITION WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF APPEALABILITY Respondents. 13 14 This case was opened when Petitioner, a state prisoner at the Salinas Valley State Prison 15 (“SVSP”), filed a document which appears to be a California state superior court form entitled, 16 “Petition for Writ of Habeas Corpus.” Dkt. 1. The Clerk of the Court thus opened this case as a 17 habeas corpus action. 18 19 20 This action has been assigned to the undersigned magistrate judge. Plaintiff has consented to magistrate judge jurisdiction in this matter. Dkt. 4. The petition does not attempt to challenge either the fact of Petitioner’s conviction or the 21 length of his sentence, however. Rather, it is based entirely on the conditions of his confinement. 22 In fact, on the state habeas form under the section labeled, “This petition concerns,” Petitioner 23 marked the box labeled, “Jail or prison conditions.” Id. at 2. He then adds: “Trust Office 24 Extortion Abusing Fun[d]s.” Id. Specifically, Petitioner, who has filed previous actions in this 25 court, claims that the Prison Trust Account Office is withdrawing too much money from his trust 26 account to pay for his various court costs. Id. at 3, 6. He further claims that he has “been deprived 27 monthly canteen also, and [has been] continuely [sic] harassed, dealing with retaliation, when [he] 28 receive[s] money from [his] family.” Id. He has also filed a request for a preliminary injunction 1 for the court to order the Prison Trust Account Office to “follow rules.” Dkt. 8 at 1. He also 2 complains that he is being harassed by SVSP prison staff because he filed the instant action. Id. 3 However, a federal habeas petition is not the proper way to raise the aforementioned claims. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil rights action proper method of 5 challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir. 6 1979) (affirming dismissal of habeas petition because challenges to terms and conditions of 7 confinement must be brought as civil rights complaint). In an appropriate case a habeas petition 8 may be construed as a section 1983 complaint. Wilwording v. Swenson, 404 U.S. 249, 251 (1971). 9 Although the court may construe a habeas petition as a civil rights action, it is not required to do 10 so. Since the time the Wilwording case was decided there have been significant changes in the 11 United States District Court Northern District of California 4 law. For instance, the filing fee for a habeas petition is five dollars, and if leave to proceed in 12 forma pauperis is granted, the fee is forgiven. For civil rights cases, however, the fee is now 13 $400.00 ($350 filing fee plus $50 administrative fee), and under the Prisoner Litigation Reform 14 Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of 15 deductions from income to the prisoner’s trust account.1 See 28 U.S.C. 1915(b)(1). A prisoner 16 who might be willing to file a habeas petition for which he or she would not have to pay a filing 17 fee might feel otherwise about a civil rights complaint for which the $350 fee would be deducted 18 from income to his or her prisoner account. Also, a civil rights complaint which is dismissed as 19 malicious, frivolous, or for failure to state a claim would count as a “strike” under 28 U.S.C. 20 § 1915(g), which is not true for habeas cases. 21 In view of these potential pitfalls for Petitioner if the court were to construe the petition as 22 a civil rights complaint, the case is DISMISSED without prejudice to his filing a civil rights action 23 if he wishes to do so in light of the above. Petitioner’s motion for a preliminary injunction is also 24 DENIED as premature. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (motion for 25 preliminary injunction cannot be decided until parties to action are served). The denial is without 26 27 28 1 Even if the prisoner is granted leave to proceed in forma pauperis, he or she must still pay the $350 filing fee (not the $50 administrative fee), but the filing fee will be taken out of his or her prisoner account in installments. 2 1 prejudice to refiling such a motion should he file a new civil rights action. 2 Petitioner’s motion for leave to proceed in forma pauperis (dkt. 5) is GRANTED. 3 Because reasonable jurists would not find the result here debatable, a certificate of 4 appealability (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) 5 (standard for COA). 6 The Clerk shall enter judgment and close the file. 7 This Order terminates Docket Nos. 5 and 8. 8 IT IS SO ORDERED. 9 Dated: October 11, 2016 10 United States District Court Northern District of California 11 DONNA M. RYU United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 VINCENT P. MCCOWAN, Case No. 4:16-cv-02147-DMR Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 8 9 10 TRUST ACCOUNT OFFICE STAFF AND SUPERVISOR, et al., Defendants. I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on October 11, 2016, 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. 16 17 18 Vincent P. McCowan ID: D29422 B4 / Cell 137 P.O. Box 1050 Soledad, CA 93960 19 20 Dated: October 11, 2016 21 22 Susan Y. Soong Clerk, United States District Court 23 24 25 26 27 By:________________________ Ivy Lerma Garcia, Deputy Clerk to the Honorable DONNA M. RYU 28 4

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