Johnson v. Quinn

Filing 3

REPORT AND RECOMMENDATIONS. Objections to R&R due by 7/17/2007. Noting Date 7/20/2007. Signed by Magistrate Judge Mary Alice Theiler. (Attachments: # 1 R&R Letter# 2 R&R Proposed 3 R&R Judgment)(GB)

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Johnson v. Quinn Doc. 3 Case 2:07-cv-00968-RSM Document 3 Filed 06/26/2007 Page 1 of 3 01 02 03 04 05 06 07 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ) ) Petitioner, ) ) v. ) ) KENNETH QUINN, ) ) Respondent. ) ____________________________________ ) CASE NO. C07-0968-RSM 08 CHRISTOPHER S. JOHNSON, 09 10 11 12 13 14 REPORT AND RECOMMENDATION Plaintiff is a Washington state prisoner who has submitted a proposed petition for a writ 15 of habeas corpus ("petition") and an application to proceed in forma pauperis ("IFP application"). 16 Plaintiff attempts to challenge, through the petition, actions by the Washington Department of 17 Corrections that have resulted in petitioner's involuntary transfer to a mental health facility. For 18 the reasons set forth below, the Court recommends that the petition be construed as a civil rights 19 complaint pursuant to 42 U.S.C. 1983 and, so construed, be dismissed under the "three strikes" 20 rule, 42 U.S.C. 1915(g). 21 22 1. Construction of Petition The Supreme Court has described the difference between a habeas petition and a 1983 REPORT AND RECOMMENDATION PAGE -1 Case 2:07-cv-00968-RSM Document 3 Filed 06/26/2007 Page 2 of 3 01 action as follows: "Federal law opens two main avenues to relief on complaints related to 02 impriso nment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under . . . 42 03 U.S.C. 1983. Challenges to the lawfulness of confinement or to particulars affecting its duration 04 are the province of habeas corpus. An inmate's challenge to the circumstances of his confinement, 05 however, may be brought under 1983." Hill v. McDonough , 126 S. Ct. 2096, 2101 (2006) 06 (citations and internal quotations omitted). 07 Petitioner admits that he is not challenging his conviction or sentence. (Proposed Petition 08 at 1, 12). Rather, he lists three grounds for relief in his petition, all of which relate to his transfer 09 from a prison or jail to a mental health facility. Petitioner appears to contend that he was entitled 10 to a hearing before being so transferred and that he did not have one. 11 Petitioner thus does not challenge "the lawfulness of [his] confinement" or the "particulars 12 affecting its duration." 126 S. Ct. at 2101. Rather, he disputes the "circumstances" of his 13 confinement, i.e., his placement in a mental health facility. Id. Accordingly, his petition should 14 be construed as a complaint submitted pursuant to 42 U.S.C. 1983. 15 16 2. Dismissal of Complaint Under "Three Strikes" Rule Plaintiff's IFP application shows that he is indigent and he therefore meets the financial 17 requirement for IFP status. However, his application is barred by the "three strikes" rule, which 18 provides that a prisoner may not be granted IFP status "if the prisoner has, on 3 or more 19 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 20 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 21 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 22 physical injury." 28 U.S.C. 1915(g). REPORT AND RECOMMENDATION PAGE -2 Case 2:07-cv-00968-RSM Document 3 Filed 06/26/2007 Page 3 of 3 01 A review of petitioner's prior litigation in this Court reveals that he has had at least three 02 cases dismissed on the grounds mentioned in 1915(g), and therefore may proceed here only if 03 he shows that he is in imminent danger of serious physical injury.1 Petitioner does not allege, 04 much less show, that he is in such danger. Accordingly, petitioner's IFP application should be 05 denied and this action should be dismissed without prejudice. A proposed Order is attached. 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 Three of petitioner's cases which have been dismissed for the reasons cited in 1915(g) are: Johnson v. Phipps, et al., Case No. C04-5190-RJB, Johnson v. Washington Dep't of 21 Corrections, et al., Case No. C05-5086-RBL, and Johnson v. Reichert, et al., Case No. C02-674JCC. For an analysis of these cases, see Johnson v. Vail, Case No. C05-748-MJP (Order issued 22 June 3, 2005). REPORT AND RECOMMENDATION PAGE -3 1 DATED this 25th day of June, 2007. A Mary Alice Theiler United States Magistrate Judge

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