Stockton v. Adams et al

Filing 10

ORDER by Judge Ronald M. Whyte Granting 7 Motion for Reconsideration; ORDER TO SHOW CAUSE. (jg, COURT STAFF) (Filed on 7/11/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ROBERT JOHN STOCKTON, JR.,
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Petitioner,
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vs.
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DERREL JOHN ADAMS, Warden,

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Respondent.

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No. C 11-5562 RMW (PR)
ORDER DENYING MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS; ORDER OF DISMISSAL
WITH LEAVE TO AMEND
(Docket No. 2.)

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 challenging the prison’s 2009 determination that petitioner was an

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associate gang member. Petitioner states that the decision resulted in his continued indefinite

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placement in the secured housing unit (“SHU”). Because petitioner has paid the filing fee, his

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motion for leave to proceed in forma pauperis is DENIED as moot.

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DISCUSSION
A.

Standard of Review
This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order
Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal With Leave to Amend
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directing the respondent to show cause why the writ should not be granted, unless it appears

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from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. §

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2243. Summary dismissal is appropriate only where the allegations in the petition are vague or

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conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908

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F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).

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B.

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Petitioner’s Claim
Petitioner alleges his due process rights were violated when he was validated as an

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associate gang member, which resulted in the denial of his release from the SHU for an

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indeterminate period based on unreliable source items. Petitioner seeks declaratory relief, a

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reversal of his validation as an associate gang member, and release from the SHU.
Petitioner’s claims are not cognizable in federal habeas corpus. “Federal law opens two

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main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28

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U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as

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amended, 42 U.S.C. § 1983. “Challenges to the lawfulness of confinement or to particulars

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affecting its duration are the province of habeas corpus.” Hill v. McDonough, 547 U.S. 573, 579

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(2006) (internal quotation marks and citation omitted). “An inmate’s challenge to the

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circumstances of his confinement, however, may be brought under § 1983.” Id. While the

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Supreme Court has not addressed whether a challenge to a condition of confinement may be

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brought in habeas corpus, see 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 action proper, where a

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successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence.”

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Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). Thus, where, as here, a petitioner’s

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successful challenge to his administrative segregation will not necessarily shorten the prisoner’s

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sentence, habeas jurisdiction does not lie. See id. Accordingly, petitioner may not proceed with

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his claims by way of federal habeas corpus and the petition is DISMISSED.

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Where a prisoner files a habeas petition attacking the conditions of his confinement the

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district court may construe such petition as a civil rights action under 42 U.S.C. § 1983. See

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Wilwording v. Swenson, 404 U.S. 249, 251 (1971). The court will not do so here, however,
Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal With Leave to Amend
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unless petitioner affirmatively informs the court that he wants this case to proceed as a civil

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rights action. Specifically, because § 1983 cases filed by prisoners are subject to certain

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statutory requirements of which petitioner should be aware before deciding to proceed with a §

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1983 action, the court will not construe the petition as a § 1983 action without petitioner’s

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consent. In particular, § 1983 cases filed by prisoners are subject to a requirement that the

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claims be administratively exhausted. See 42 U.S.C. § 1997e(a). Further, such cases are subject

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to a $350.00 filing fee, rather than the $5.00 dollar filing fee for habeas cases, see 28 U.S.C.

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§ 1914(a), and the fee must be paid even if in forma pauperis status is granted, by way of

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deductions from the prisoner’s trust account until the full $350.00 fee is paid. See 28 U.S.C.

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§ 1915(b). For these reasons, petitioner might not seek to have the instant action treated as a

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§ 1983 case.

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Accordingly, this case is DISMISSED with leave to amend to allege a § 1983 action.
Should petitioner fail to do so, the case will be dismissed without prejudice.
CONCLUSION
For the foregoing reasons, petitioner’s case is DISMISSED with leave to amend.

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Petitioner must file his complaint no later than thirty (30) days from the date of this order.

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Petitioner must write the case number for this action -- Case No. C 11-5562 RMW (PR) -- on

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

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defendants each person who caused a violation of his constitutional rights and explain what each

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person did to cause the violation. Liability under § 1983 arises only upon a showing of personal

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participation by the defendant. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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As mentioned above, the filing fee for a civil rights action is $350.00. Petitioner must

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pay the $350.00 filing fee, or file an application for leave to proceed in forma pauperis, before

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this action can proceed. Accordingly, if petitioner chooses to file a civil rights complaint,

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petitioner must pay the requisite $350.00 filing fee in this action no later than thirty (30) days

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from the date of this order. He shall include with his payment a clear indication that it is for the

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above-referenced case number, Case No. C 11-5562 RMW (PR). Alternatively, in the event that

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petitioner is unable to pay the filing fee, he shall submit an in forma pauperis application, trust
Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal With Leave to Amend
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account statement and certificate of funds no later than thirty (30) days from the date of this

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order.

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Failure to file a completed civil rights form and to pay the filing fee or file the

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requisite documents within the thirty-day deadline shall result in dismissal of this action

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without 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.
IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal With Leave to Amend
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ROBERT JOHN STOCKTON JR,

Case Number: CV11-05562 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
DERREL G ADAMS et al,
Defendant.

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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 July 11, 2012, 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.

Robert John Stockton J-80992
C3-109 Security Housing Unit
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532
Dated: July 11, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk