Opinion
CIVIL ACTION NO. 1:15-CV-2276-TWT-AJB
07-14-2015
KELVIN CAIN, GDC ID # 133731, Petitioner, v. SUPERINTENDENT PAYNE et al., Respondents.
PRISONER HABEAS CORPUS 28 U.S.C. § 2254
UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION
Petitioner, Kelvin Cain, confined in Phillips State Prison in Buford, Georgia, submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. [Doc. 1.] Petitioner also submitted an incomplete application to proceed in forma pauperis. [Doc. 2.] For the purpose of dismissal only, Petitioner's application to proceed in forma pauperis, [Doc. 2], is GRANTED.
Petitioner states that he was convicted of a drug offense in Gwinnett County on August 8, 2014. [Doc. 1 at 1, 2.] Instead of challenging that conviction, Petitioner brings claims regarding prison conditions in his § 2254 petition. [Id. at 5-6.] Those claims could be cognizable only in a civil rights action pursuant to 42 U.S.C. § 1983. See Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (determining that habeas and civil rights cases are "mutually exclusive"). Petitioner has filed at least three frivolous § 1983 actions and is generally barred from proceeding in forma pauperis in such actions pursuant to 28 U.S.C. § 1915(g). See Order and Opinion, Cain v. Gwinnett Cnty. Det. Ctr. Prison Health Care Providers, No. 1:10-cv-1476-TWT, at 2-3 (N.D. Ga. June 14, 2010) (listing Petitioner's frivolous cases). In the present case, because Petitioner submitted a § 2254 petition, the undersigned does not construe the matter as a § 1983 action.
Petitioner filed two additional § 2254 cases that (1) challenge his August 8, 2014, drug conviction in Gwinnett County, and (2) raise one or more proper grounds for habeas relief. See Cain v. Payne, No. 1:15-cv-2277-TWT-AJB (N.D. Ga. filed June 24, 2015); Cain v. Baly, No. 1:15-cv-2311-TWT-AJB (N.D. Ga. filed June 26, 2015). The Court may issue an order "to avoid unnecessary cost or delay" as to multiple actions "involv[ing] a common question of law or fact . . . ." Fed. R. Civ. P. 42(a)(3). Thus, to the extent that Petitioner intended the present case to constitute a challenge to his conviction, the Court should administratively close the case and resolve Petitioner's proper grounds for habeas relief in his two additional § 2254 actions.
Accordingly, the undersigned RECOMMENDS that (1) Petitioner's claims regarding prison conditions be DISMISSED WITHOUT PREJUDICE, and (2) the present case be ADMINISTRATIVELY CLOSED and Petitioner's proper grounds for habeas relief be resolved in Cain v. Payne, No. 1:15-cv-2277-TWT-AJB (N.D. Ga. filed June 24, 2015), and Cain v. Baly, No. 1:15-cv-2311-TWT-AJB (N.D. Ga. filed June 26, 2015).
The Clerk is DIRECTED to terminate the reference to the undersigned.
IT IS SO ORDERED, RECOMMENDED, and DIRECTED, this 14th day of July, 2015.
/s/ _________
ALAN J. BAVERMAN
UNITED STATES MAGISTRATE JUDGE