Hernandez v. Essex County Correction et al

Filing 5

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER. If Hernandez wishes to proceed with this action, he must, within 42 days of the date of this Order, either file (1) an Amended Habeas Petition or (2) a Complaint accompanied by an Application to Proceed in District Court Without Prepaying Fees as well as a certified copy of his inmate account statement. The Clerk mailed plaintiff a blank Application to Proceed in District Court Without Prepaying Fees with a copy of this Memorandum and Order.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
HENRY HERNANDEZ,
Petitioner,
v.

CIVIL ACTION NO.
14-13183-MBB

ESSEX COUNTY CORRECTION, et al.,
Respondents.
MEMORANDUM AND ORDER
November 4, 2014
BOWLER, U.S.M.J.
For the reasons stated below, petitioner will be granted
additional time to file either an amended habeas petition or a
civil rights complaint along with the applicable filing fee or
motion for leave to proceed in forma pauperis.
BACKGROUND
Petitioner Henry Hernandez (“Hernandez”), now incarcerated
at the Essex County Correctional Facility, filed a one-paragraph
“Motion for Writ of Habeas Corpus.”

See Docket No. 1.

Hernandez

did not pay the filing fee or file a motion seeking leave to
proceed in forma pauperis.1
The case caption of the petition names as respondents: (1)
Essex County Correction; and (2) Frank Cousins, Jr.

1

Id.

In the

A party bringing a civil action must either (1) pay the
applicable filing fee ($5.00 for habeas petitions and $350 for civil
complaints), see 28 U.S.C. § 1914(a) (fees); or (2) seek leave to
proceed without prepayment of the filing fee, see 28 U.S.C. § 1915
(proceedings in forma pauperis).

accompanying affidavit, Hernandez avers that the correctional
facility is violating his Eighth Amendment rights “because they
are playing with a mental health patient[‘s] mind.”

See Docket

No. 2.
LEGAL STANDARD
Although pro se pleadings must be liberally construed,
Haines v. Kerner, 404 U.S. 519, 520 (1972)(holding that pro se
litigants are entitled to liberal construction of their
pleadings), the Court is unable to treat Hernandez’ pleading as
both a habeas petition and civil rights complaint.
Relief by way of a writ of habeas corpus extends to a person
in custody if the petitioner can show that he is “in custody in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3).

A state prisoner's federal

remedy for challenging the constitutional validity of his custody
is a petition for writ of habeas corpus under § 2254 or § 2241,
either of which can be sought only after a petitioner has
exhausted state court remedies with regard to the conviction and
sentence.

See 28 U.S.C. § 2254(b); Braden v. 30th Judicial

Circuit Court, 410 U.S. 484, 490–91 (1973) (exhaustion also
required under 28 U.S.C. § 2241).
As a general matter, a party may challenge the fact or
duration of his custody only through a habeas petition and may
not combine a request for release with claims for damages based

2

on the conditions of his confinement.

Preiser v. Rodriguez, 411

U.S. 475, 484-499 (1973) (habeas corpus proceedings are the
proper mechanism for a prisoner to challenge the "legality or
duration" of confinement whereas a civil rights action, in
contrast, is the proper method of challenging "conditions of ...
confinement); Allen v. McCurry, 449 U.S. 90, 104 (1980) ("[T]he
purpose of [the writ of habeas corpus] is not to redress civil
injury, but to release the applicant from unlawful physical
confinement.").
DISCUSSION
Here, Hernandez has not alleged any basis on which the Court
could issue a writ of habeas corpus and he fails to indicate
whether his habeas petition is brought pursuant to 28 U.S.C. §
2241 or 28 U.S.C. § 2254.

If Hernandez wishes to pursue habeas

relief, he will be granted additional time to file an Amended
Petition for Writ of Habeas Corpus presenting a cognizable habeas
claim along with the applicable $5.00 filing fee or an
Application to Proceed in District Court Without Prepaying Fees
or Costs.
To the extent Hernandez seeks to assert a civil rights claim
for damages for the alleged violation of his Eighth Amendment
rights, a claim for damages may be sought in a civil complaint.2

2

42 U.S.C. § 1983 provides that:
Every person who under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or

3

In order to commence a civil rights action seeking monetary
damages, Hernandez must file a complaint.

See Fed. R. Civ. P. 3.

The complaint must contain a "short and plain statement" (1) of
the grounds upon which the court's jurisdiction rests and (2) of
the claim(s) showing that the pleader is entitled to relief.
Fed. R. Civ. P. 8(a).
for judgment.

Id.

The complaint must also contain a demand

If Hernandez wishes to file civil rights

complaint, he will be granted additional time to file such
complaint accompanied by an Application to Proceed in District
Court Without Prepaying Fees as well as a certified copy of his
inmate account statement.3
ORDER
Accordingly, it is hereby ORDERED that:
1)

If Hernandez wishes to proceed with this action, he
must, within 42 days of the date of this Order, either
file (1) an Amended Habeas Petition or (2) a Complaint
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law ....

3

Unlike other civil litigants, prisoner plaintiffs are not
entitled to a complete waiver of the filing fee, notwithstanding the
grant of in forma pauperis status. Based on the information contained
in the prison account statement, the Court will direct the appropriate
prison official to withdraw an initial partial payment from Hernandez’
prison account, followed by payments on a monthly basis until the
entire $350.00 filing fee is paid in full. See 28 U.S.C. §
1915(b)(1)-(2). Even if the action is dismissed upon a preliminary
screening, see 28 U.S.C. §§ 1915(e)(2), 1915A, Hernandez would remain
obligated to pay the filing fee, see McGore v. Wrigglesworth, 114 F.3d
601, 607 (6th Cir. 1997) (§ 1915(b)(1) compels the payment of the fee
at the moment the complaint is filed).

4

accompanied by an Application to Proceed in District
Court Without Prepaying Fees as well as a certified
copy of his inmate account statement.
2)

Failure to comply with this Memorandum and Order will
subject this action to dismissal without prejudice.4

SO ORDERED.
/s/ Marianne B. Bowler, USMJ
MARIANNE B. BOWLER
United States Magistrate Judge

4

This action was assigned pursuant to the Court's Program for
Random Assignment of Civil Cases to Magistrate Judges. Upon receipt
of Hernandez’ response to this Memorandum and Order, the undersigned
may direct the reassignment of the case to a District Judge for
further review of Plaintiff’s response.

5