Torres v. Facility Commander of County Jail 2 ( 2020 )

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 JOSHUA ANTHONY TORRES, No. C 20-6554 WHA (PR) 9 Petitioner, ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED 10 v. IN FORMA PAUPERIS 11 SAN FRANCISCO SHERIFF’S DEPARTMENT, (Dkt. No. 2) 12 Respondent. 13 / 14 Petitioner, an inmate in the San Francisco County Jail, filed this pro se petition for a writ 15 of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that conditions of his confinement in 16 the jail are unconstitutional, including insufficient access to educational and rehabilitative 17 programs. "Federal law opens two main avenues to relief on complaints related to 18 imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil 19 Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to the 20 lawfulness of confinement or to particulars affecting its duration are the province of habeas 21 corpus." Muhammad v. Close, 540 U.S. 749, 750 (2004). Petitioner’s claims involving the 22 conditions of his confinement are not the proper subject of a habeas action. See Badea v. Cox, 23 931 F.2d 573, 574 (9th Cir. 1991); see also Crawford v. Bell, 599 F.2d 890, 891-92 & n.1 (9th 24 Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and 25 conditions of confinement must be brought in civil rights complaint). 26 In an appropriate case, a habeas petition may be construed as a Section 1983 complaint. 27 Wilwording v. Swenson, 404 U.S. 249, 251 (1971); see also Nettles v. Grounds, 830 F.3d 922, 28 936 (9th Cir. 2016) (en banc). Although the court may construe a habeas petition as a civil 1 if leave to proceed in forma pauperis is granted, the fee is forgiven. For civil rights cases, 2 however, the fee is now $400 and under the Prisoner Litigation Reform Act the prisoner is 3 required to pay it, even if granted in forma pauperis status, by way of deductions from income 4 to the prisoner’s trust account. See 28 U.S.C. 1915(b)(1). A prisoner who might be willing to 5 file a habeas petition for which he or she would not have to pay a filing fee might feel otherwise 6 about a civil rights complaint for which the $400.00 fee would be deducted from income to his 7 or her prisoner account. Also, a civil rights complaint which is dismissed as malicious, 8 frivolous, or for failure to state a claim would count as a “strike” under 28 U.S.C. § 1915(g), 9 which is not true for habeas cases. 10 In view of these potential pitfalls for petitioner if the petition were construed as a civil 11 rights complaint, the case will is DISMISSED without prejudice to petitioner filing a civil rights 12 action if he wishes to do so in light of the above. 13 If petitioner has claims challenging his conviction or sentence as unconstitutional, he 14 may bring them in a habeas petition after he has presented all of those claims to the California 15 Supreme Court in a manner that adheres to the state courts’ procedures, and after the California 16 Supreme Court has decided those claims. It does not appear from his form petition that he has 17 done so. 18 No certificate of appealability is warranted in this case because a reasonable jurist would 19 not find the dismissal of this petition debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 20 (2000). 21 Leave to proceed in forma pauperis is GRANTED. 22 The clerk shall enter judgment and close the file. 23 IT IS SO ORDERED. 24 Dated: November 2 0 , 2020. 25 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 26 27 28