Opinion
Case No. CV 11-10140-CJC (DTB)
12-20-2011
MELVIN DUKES, Petitioner, v. WARDEN CASH, et al., Respondents.
ORDER RE SUMMARY DISMISSAL OF ACTION
Petitioner, a California state prisoner currently incarcerated at California State Prison in Lancaster, California ("CSP-Lancaster"), purported to file a Petition for Writ of Habeas Corpus by a Person in State Custody ("Pet.") herein on December 7, 2011.
From the face of the Petition, it appears that petitioner's claims are not directed to the legality or duration of petitioner's current confinement. Rather, petitioner claim that he is being "harassed" by prison personnel who are alleged to be implementing a policy whereby certain "mental health" prisoners, including plaintiff, are moved from one cell to another. When an inmate refuses to move, prison officials respond with "excessive force and violence." (Pet. at 3.) Petitioner further alleges that prison medical staff do not "fully disclose" the injuries resulting from such incidents. (Id.)
Petitioner further recounts a specific incident in which petitioner alleges he refused to move to a new cell in a different building and, as a result of his refusal, he was assaulted and sustained significant injuries. (Pet. at 4-5.) Petitioner alleges that after he sustained injury at the hands of various prison guards, prison medical personnel were deliberately indifferent to his serious medical needs. (Pet. at 5-6.)
Petitioner also alleges that prison officials are not complying with state law regarding rules violations. Petitioner also appears to allege that such conduct is motivated, in part, by racial bias. (Pet. at 3-4.)
Petitioner alleges that he improperly received a CDC 115 rules violation for refusing a new cell mate. (Pet. at 7-9.)
Claims such as these which challenge the conditions, rather than the duration, of petitioner's confinement may not properly be asserted in a habeas petition, or as part of a habeas petition. See 28 U.S.C. § 2254(a); see also Preiser v. Rodriguez, 411 U.S. 475, 498-500, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). Rather, such claims must be asserted in a separate civil rights action.
The Court does have discretion to construe petitioner's habeas petition as a civil rights complaint. See Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971); Hansen v. May, 502 F.2d 728, 729 (9th Cir. 1974). However, in this instance, the Court chooses not to exercise such discretion for the following reasons:
First, petitioner has failed to make an adequate showing of indigency. The Prison Litigation Reform Act of 1995 (Public Law 104-134, 110 Stat. 1321) ("PLRA") amended 28 U.S.C. § 1915 to provide, inter alia, that all prisoners who file civil actions must pay the full amount of the filing fee, and that any prisoner seeking to file a complaint in a civil action without prepayment of fees must submit a completed Declaration in Support of Request to Proceed In Forma Pauperis. In addition, prisoners must submit a certified copy of their prison trust fund account statement for the 6-month period immediately preceding the filing of his/her complaint, obtained from the appropriate official of the prison at which the prisoner is confined. See 28 U.S.C. §§ 1915(a)(1)-(2), 1915(b)(1). Here, when petitioner submitted his "Petition" for filing, he failed to submit a certified copy of his trust account statement for the last six months.
Moreover, as the current action was not submitted on a civil rights complaint form, certain critical information, such as the capacity in which the defendants are named, is lacking.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, IT THEREFORE IS ORDERED that this action be summarily dismissed without prejudice. The Clerk is directed to send petitioner a blank Central District civil rights complaint form, which petitioner is encouraged to utilize should he desire to pursue this action.
LET JUDGMENT BE ENTERED ACCORDINGLY.
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CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE
Presented by:
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David T. Bristow
United States Magistrate Judge