(HC) Harmon v. Burton ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ATRAYBION HARMON, No. 2:21-cv-1184 DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 ROBERT BURTON, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 18 under 28 U.S.C. § 2254. Petitioner has paid the filing fee. 19 Under Rule 4 of the Rules Governing § 2254 Cases, the court is required to conduct a 20 preliminary review of all petitions for writ of habeas corpus filed by state prisoners. Pursuant to 21 Rule 4, the court must summarily dismiss a petition if it “plainly appears from the petition and 22 any attached exhibits that the petitioner is not entitled to relief in the district court.” 23 I. The Petition 24 Petitioner complains that prison conditions, primarily overcrowding, put him at risk for 25 contracting COVID-19.1 Petitioner seeks immediate release and an injunction barring the 26 1 COVID-19 is described by the U.S. Center for Disease Control and Prevention (“CDC”) as “a 27 dangerous disease caused by a virus discovered in December 2019 . . . . It is very contagious and has quickly spread around the world.” https://www.cdc.gov/coronavirus/2019-ncov/your- 28 health/about-covid-19/basics-covid-19.html. 1 Department of Corrections and Rehabilitation from transferring inmates from other prisons to the 2 California Health Care Facility, where he was previously incarcerated.2 3 II. Petitioner’s Allegations are not Cognizable in a Federal Habeas Action 4 “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of 5 that custody, and ... the traditional function of the writ is to secure release from illegal custody.” 6 Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Thus, “when a state prisoner is challenging the 7 very fact or duration of his physical imprisonment, and the relief he seeks is a determination that 8 he is entitled to immediate release or a speedier release from that imprisonment, his sole federal 9 remedy is a writ of habeas corpus.” Id. at 500. By contrast, “[t]he appropriate remedy for [claims 10 concerning the terms and conditions of a prisoner’s incarceration], if proven, would be a 11 judicially mandated change in conditions and/or an award of damages, but not release from 12 confinement.” Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979). Thus, “[h]abeas corpus 13 proceedings are the proper mechanism for a prisoner to challenge the ‘legality or duration’ of 14 confinement. A civil rights action ... is the proper method of challenging ‘conditions of ... 15 confinement.’” Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser, 411 U.S. at 16 484, 498-99). 17 Petitioner’s claim that current prison conditions expose him to a risk of harm due to 18 potential exposure to COVID-19 relates to the conditions of petitioner’s confinement rather than 19 the legality of his confinement. An appropriate remedy for these claims, if proven, would be in 20 the form of damages or a change in conditions, not release. If a state prisoner’s claim does not lie 21 at the core of habeas corpus, “it may not be brought in habeas corpus but must be brought, if at 22 all, under [42 U.S.C.] § 1983.” Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc) 23 (internal quotation marks and citation omitted). Therefore, the exclusive vehicle for petitioner’s 24 claim is § 1983. See Cisneros v. Garcia, No. 2:20-cv-1750 TLN DB P, 2020 WL 8920697, at *1 25 (E.D. Cal. Sept. 8, 2020) (finding challenge to conditions of confinement should be raised in a § 26 1983 complaint rather than a habeas petition, even if the remedy petitioner seeks is release from 27 2 According to a change of address petitioner submitted recently, he is now incarcerated at Valley 28 State Prison. 1 prison), rep. and reco. adopted, 2021 WL 1087688 (E.D. Cal. Mar. 22, 2021); Phea v. Pfeiffer, 2 No. 2:20-cv-0283WBS GGH P, 2020 WL 1892427, at *1 (E.D. Cal. Apr. 16, 2020) (same); 3 Bowman v. California, No. EDCV 19-00184 RGK (RAO), 2019 WL 4740538, at *1-2 (C.D. Cal. 4 June 26, 2019) (same), rep. and reco. adopted, 2019 WL 4736238 (C.D. Cal. Sept. 27, 2019). 5 This is so even though petitioner requests release from custody. See Shook v. Apker, 472 F. 6 App’x 702, 702-03 (9th Cir. 2012) (finding claims regarding conditions of confinement were 7 properly brought in a civil rights case despite the relief plaintiff sought). 8 III. Petitioner’s Petition Should not be Converted to a Section 1983 Complaint 9 In an appropriate case, a district court can convert a habeas petition into a civil rights 10 complaint. Nettles, 830 F.3d at 935-36. However, this court declines to recommend conversion 11 of this action because there are several significant differences in a proceeding in habeas corpus 12 compared to a civil rights action. For instance, the filing fee for a habeas petition is $5.00. For 13 civil rights cases, however, the fee is $402. Even if the prisoner is granted in forma pauperis 14 status, he is still obligated to pay $350, by way of deductions from income to the prisoner’s trust 15 account. See 28 U.S.C. § 1915(b)(1). Petitioner may choose not to pursue his claim if he is 16 required to pay the substantially higher filing fee. Another difference is that a prisoner must 17 exhaust his administrative remedies through the prison appeals process before filing a § 1983 suit 18 in federal court. 42 U.S.C. § 1997e(a). Petitioner indicates that he has not done so. (ECF No. 1 19 at 9.) 20 Moreover, the petition does not state specific allegations against the respondent or any 21 other individual. Thus, it is not clear who petitioner would seek to hold responsible for the 22 alleged rights violations. Accordingly, this court recommends that the district court decline to 23 convert this action into a civil rights action. 24 For the foregoing reasons, the Clerk of the Court is HEREBY ORDERED to randomly 25 assign a district judge to this case. 26 Further, IT IS RECOMMENDED that this action be dismissed without prejudice for 27 petitioner’s failure to state a claim cognizable under 28 U.S.C. § 2254. 28 //// 1 These findings and recommendations will be submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after 3 | being served with these findings and recommendations, petitioner may file written objections 4 | withthe court. The document should be captioned “Objections to Magistrate Judge's Findings 5 | and Recommendations.” Petitioner is advised that failure to file objections within the specified 6 | time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 7 | F.2d 1153 (9th Cir. 1991). 8 || Dated: September 2, 2021 9 10 ll ORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 || DLB:9 DB Prisoner Inbox/Habeas/S/harm1184.scrn fr 27 28