Johnson v. Hatton et al

Filing 4

ORDER of DISMISSAL. This action is DISMISSED without prejudice to filing as a new habeas action under 28 U.S.C. §2254. The Clerk shall enclose two copies of the court's form of petition with a copy of this order to Plaintiff. Signed by Judge Edward J. Davila on 4/5/2017. (Copy of order and 2 copies of form of petition mailed to Plaintiff by AMK) (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 4/5/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CEDRIC CHESTER JOHNSON,
United States District Court
Northern District of California

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Plaintiff,

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Case No. 16-06665 EJD (PR)
ORDER OF DISMISSAL

v.

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S. HATTON, et al.,
Defendants.

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Plaintiff, a state prisoner at the Correctional Training Facility (“CTF”) in Soledad,

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filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s motion

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for leave to proceed in forma pauperis will be granted in a separate order.

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

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upon which relief may be granted or seek monetary relief from a defendant who is immune

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from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally

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construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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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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B.

Plaintiff’s Claims

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Plaintiff claims that CTF prison officials are not properly calculating his time

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credits and are “holding me in prison well past my EPRD (Earliest Possible Release
Date).” (Compl. at 3.) According to the attached supplemental material, Plaintiff asserts

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United States District Court
Northern District of California

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that CTF is denying “2 for 1 credit,” resulting in a lengthier sentence. (Compl. Ex. A at 1.)

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If a state prisoner’s time credits have been improperly computed, he may have a

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claim for denial of due process, see Haygood v. Younger, 769 F.2d 1350, 1355-58 (9th

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Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 (1986), which generally may only be

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remedied by way of a petition for a writ of habeas corpus, see Young v. Kenny, 907 F.2d

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874, 876-78 (9th Cir. 1990), cert. denied, 498 U.S. 1126 (1991); accord Toussaint v.

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McCarthy, 801 F.2d 1080, 1096 n.14 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

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Here, Plaintiff is alleging that his time credits are not being properly calculated.

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Accordingly, this action should be brought as a petition for a writ of habeas corpus rather

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than a § 1983 action. Id.

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Furthermore, although a district court may construe a habeas petition by a prisoner

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attacking the conditions of his confinement as a civil rights action under 42 U.S.C. § 1983,

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see Wilwording v. Swenson, 404 U.S. 249, 251 (1971), the opposite is not true: A civil

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rights complaint seeking habeas relief should be dismissed without prejudice to bringing it

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as a petition for writ of habeas corpus. See Trimble v. City of Santa Rosa, 49 F.3d 583,

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586 (9th Cir. 1995). Accordingly, Plaintiff may seek relief for the allegedly improper

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calculation of time credits by filing a petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254.

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CONCLUSION

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For the reasons set forth above, this action is DISMISSED without prejudice to
filing as a new habeas action under 28 U.S.C. § 2254.
The Clerk shall enclose two copies of the court’s form petition with a copy of this
order to Plaintiff.
IT IS SO ORDERED.
4/5/2017
Dated: _____________________

________________________
EDWARD J. DAVILA
United States District Judge

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United States District Court
Northern District of California

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Order of Dismissal
PRO-SE\BLF\CR.16\06665Johnson_dism(cr-hc)

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