Opinion
CASE NO. 3:20-cv-05287-RBL-JRC
08-12-2020
LARRY LLOYD, Plaintiff, v. PENNY L KINGSTON et al., Defendants.
ORDER
The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge J. Richard Creatura. Before the Court is Larry Lloyd's: (1) motion for leave to proceed in forma pauperis (IFP) in a § 1983 complaint (Dkt. 1); (2) second motion for leave to proceed IFP in a 28 U.S.C. § 2254 habeas corpus petition (Dkt. 11); and (3) a proposed habeas petition filed pursuant to § 2254 ("proposed petition") (Dkt. 10). Although Mr. Lloyd originally filed this cause of action as a § 1983 civil rights complaint, it appears that Mr. Lloyd now seeks to recharacterize his cause of action as a habeas corpus petition pursuant to § 2254. See Dkt. 10, 11.
After reviewing the second IFP motion and the proposed petition, Mr. Lloyd is advised that the Court intends to withdraw his § 1983 complaint and recharacterize this action as a habeas corpus petition pursuant to § 2254. However, a review of Mr. Lloyd's proposed petition reveals deficiencies, and he must file an amended petition under § 2254 alleging facts, if any, showing that his ground for relief has been properly exhausted in state court, naming the proper respondent and otherwise showing cause why this matter should not be dismissed on or before September 10, 2020.
DISCUSSION
Mr. Lloyd, who is a Washington State prisoner currently incarcerated at the Coyote Ridge Corrections Center, filed this civil rights action on March 25, 2020. Dkt. 1. In the proposed complaint, Mr. Lloyd alleged violations of the Fourteenth Amendment's due process clause and the Eighth Amendment's prohibition against cruel and unusual punishment. Dkt. 1-1. Mr. Lloyd challenged the revocation of his community custody. Id.
On April 28, 2020, Mr. Lloyd was ordered to file a habeas petition under § 2254 on or before May 28, 2020. Dkt. 5. The Court advised Mr. Lloyd that he had not stated a claim for relief under § 1983. Id. After an extension, on July 22, 2020, Mr. Lloyd filed a proposed habeas corpus petition. Dkt. 10. In the proposed petition, Mr. Lloyd states that he is challenging his 2014 conviction of possession of a controlled substance and assault in the second degree. Dkt. 10. He raises one ground for relief, contending that his due process rights were violated when his community custody was revoked. Dkt. 10 at 26.
Based on the proposed habeas petition, it appears that Mr. Lloyd seeks to recharacterize his § 1983 complaint as a habeas petition. See Dkt. 10. Mr. Lloyd seeks relief in the form of a shorter sentence, and therefore a federal habeas petition is the proper vehicle for his requested relief. The court in Castro v. United States, 540 U.S. 375, 382-83 (2003) held that before recharacterizing a civil rights claim, a district court must "notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent [habeas petition] will be subject to the restrictions on 'second or successive' motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the [habeas] claims he believes he has." Id. at 383; see also United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000) (holding that a court should not recharacterize a prisoner's pro se filing as a federal § 2255 habeas petition when doing so would be to the prisoner's disadvantage). To the extent that Mr. Lloyd seeks monetary relief in a habeas action, monetary damages are not available. See 28 U.S.C. § 2254; McCarthy v. Bronson, 500 U.S. 136 (1991) (recognizing two primary categories of suits brought by prisoners-applications for habeas corpus relief pursuant to 28 U.S.C. §§ 2254 and 2255 and actions for monetary or injunctive relief under 42 U.S.C. § 1983").
Therefore, pursuant to the requirements of Castro, Mr. Lloyd is advised that the Court intends to recharacterize his § 1983 complaint as a § 2254 petition because the claims raised go directly to the constitutionality of Mr. Lloyd's confinement itself. Mr. Lloyd is warned that if he chooses to do so, his petition will be subject to dismissal if he has already brought a habeas petition challenging his conviction or sentence unless Mr. Lloyd obtains permission to bring a second or successive petition.
Mr. Lloyd, however, is advised that he may pursue federal habeas relief only after he has exhausted his state judicial remedies. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). Full and fair presentation of claims to the state court requires "full factual development" of the claims in that forum. Kenney v. Tamayo-Reyes, 504 U.S. 1, 8 (1992). The petition indicates that Mr. Lloyd has not satisfied the exhaustion requirement by raising his claim to the state's highest court. See Dkt. 10 at 4-7. Therefore, the petition is subject to dismissal without prejudice.
Additionally, Mr. Lloyd must name as respondent, the "person who has custody over [the petitioner]." 28 U.S.C. § 2242; see also § 2243; Brittingham v. United States, 982 F.2d 378 (9th Cir. 1992); Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989). According to his petition, Mr. Lloyd is currently confined at CRCC. Therefore, Mr. Lloyd must name the superintendent of his facility as respondent. With respect to Mr. Lloyd's two pending applications to proceed in forma pauperis, (Dkt. 1, 11) no action will be taken until and unless the deficiencies outlined above are corrected and Mr. Lloyd has been advised that the Court recharacterizes this action as a habeas corpus petition. If Mr. Lloyd was allowed to proceed in forma pauperis in a § 1983 action based on his first application (see Dkt. 1), he would be required to pay the $350.00 filing fee in installments from his prison trust account pursuant to § 1915(b) (prisoners are required to pay an initial partial filing fee followed by installment payments in cases where the prisoner is unable to pay the entire filing fee at the beginning of the civil action). The filing fee for a in forma pauperis habeas petition is $5.00. By deferring consideration of Mr. Lloyd's applications to proceed in forma pauperis until he has been advised of the Court's recharacterization of this action and corrected the deficiencies outlined above, Mr. Lloyd will avoid being required to pay the full § 1983 filing fee on an action that is unlikely to proceed forward in its present posture. Based on the foregoing, this Court does hereby ORDER as follows:
(1) Mr. Lloyd must file by September 10, 2020 an amended petition under § 2254 alleging facts, if any, showing that his grounds for relief have been properly exhausted in state court, naming the proper respondent and otherwise showing cause why this matter should not be dismissed. The amended petition should contain all habeas claims he intends to raise.
(2) Failure to timely comply with this order will result in a recommendation that this action be dismissed.
(3) The Clerk shall send a copy of this order to Mr. Lloyd and the Court's § 2254 form petition.
(4) The Clerk shall re-note Mr. Lloyd's two applications to proceed in forma pauperis (Dkt. 1, 11) for consideration on September 10, 2020.
Dated this 12th day of August, 2020.
/s/_________
J. Richard Creatura
United States Magistrate Judge