Koivisto v. Asuncion ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 TAUNO A. KOIVISTO, 11 Case No. 19-cv-04329-RS (PR) Petitioner, 12 v. ORDER OF DISMISSAL 13 DEBBIE ASUNCION, 14 Respondent. 15 16 17 This federal action was filed as a petition for writ of habeas corpus, that is, as a 18 challenge to the lawfulness or duration of petitioner’s incarceration. A review of 19 petitioner’s filings (in particular the amended petition) shows that petitioner sets forth 20 claims against state actors regarding the conditions of confinement — specifically medical 21 care — rather than challenging the lawfulness or duration of his confinement. Therefore, 22 if petitioner prevails here it will not affect the length of his incarceration. This means that 23 his claim is not the proper subject of a habeas action, but must be brought as a civil rights 24 case under 42 U.S.C. § 1983. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (habeas 25 corpus action proper mechanism for challenging “legality or duration” of confinement; 26 civil rights action proper method for challenging conditions of confinement); Crawford v. 27 Bell, 599 F.2d 890, 891-892 & n.1 (9th Cir. 1979) (affirming dismissal of habeas petition 1 rights complaint). 2 In an appropriate case a habeas petition may be construed as a section 1983 3 complaint. Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the Court may 4 construe a habeas petition as a civil rights action, it is not required to do so. Since the time 5 when the Wilwording case was decided there have been significant changes in the law. For 6 instance, the filing fee for a habeas petition is five dollars; for civil rights cases, however, 7 the fee is now $400 ($350 if pauper status is granted) and under the Prisoner Litigation 8 Reform Act the prisoner is required to pay it, even if granted in forma pauperis status, by 9 way of deductions from income to the prisoner’s trust account. See 28 U.S.C. § 1915(b). 10 A prisoner who might be willing to file a habeas petition for which he or she would not 11 have to pay a filing fee might feel otherwise about a civil rights complaint for which the 12 $400 fee would be deducted from income to his or her prisoner account. Also, a civil 13 rights complaint which is dismissed as malicious, frivolous, or for failure to state a claim 14 would count as a “strike” under 28 U.S.C. § 1915(g), which is not true for habeas cases. 15 In view of these potential pitfalls for petitioner if the Court were to construe the 16 petition as a civil rights complaint, the case is DISMISSED without prejudice to petitioner 17 filing a civil rights action if he wishes to do so in light of the above. The Clerk shall enter 18 judgment in favor of respondent, and close the file. 19 IT IS SO ORDERED. 20 Dated: March_1_0_, 2020 _________________________ 21 RICHARD SEEBORG 22 United States District Judge 23 24 25 26 27