Opinion
No. C 03-4799 WHA (PR)
December 22, 2003
JUDGMENT
Pursuant to the court's order entered today, a judgment of dismissal without prejudice is hereby entered. Plaintiff shall receive no relief by way of his petition.
DISMISSAL WITHOUT PREJUDICE
Petitioner, a California state inmate, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner contends he has been confined to his cell for seven months, that the purported reason for a lockdown is false, and that the prison should be ordered to provide rehabilitation and work programs.Petitioner's claims do not involve the fact or duration of his confinement, hence are not the proper subject of a habeas action.See Moran v. Sondalle, 218 F.3d 647, 650-52 (7th Cir. 2000);Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil rights action is proper method of challenging conditions of confinement);Crawford v. Bell 599 F.2d 890, 891-92 n. 1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and conditions of confinement must be brought in civil rights complaint).
A district court may construe a habeas petition attacking conditions of confinement as a civil rights action under 42 U.S.C. § 1983, however.Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the court may construe a habeas petition as a civil rights action, it is not required to do so. After the Wilwording case was decided there were significant changes in the law. For instance, the filing fee for a habeas petition is five dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For civil rights cases, however, the fee is $150 and under the Prisoner Litigation Reform Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of deductions from his or her prisoner account. A prisoner who might be willing to file a habeas petition for which he or she would not have to pay a filing fee might feel otherwise about a civil rights complaint for which the $150 fee would be deducted from income to his or her prisoner account. Also, a civil rights complaint which is dismissed as malicious, frivolous, or for failure to state a claim would count as a "strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases.
In view of these potential pitfalls for petitioner if the Court were to construe the petition as a civil rights complaint, the case will be dismissed without prejudice to petitioner filing a civil rights action if he wishes to do so in light of the above.
CONCLUSION
Leave to proceed in forma pauperis is GRANTED. The petition is summarily DISMISSED without prejudice. The clerk shall close the file.