IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
June 2, 2005
STEPHEN LIEBB, PETITIONER,
WARDEN J. BROWN, RESPONDENT.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER OF DISMISSAL WITH LEAVE TO AMEND
Petitioner Stephen Liebb, a State prisoner incarcerated at San Quentin State Prison (SQSP), has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the execution of his sentence. Petitioner has paid the $5.00 filing fee. Venue is proper because Petitioner is confined in Marin County, which is located in this judicial district. See 28 U.S.C. § 2241(d).
On March 26, 1989, Petitioner was incarcerated at the California Medical Facility at Vacaville. On that date Petitioner was involved in a physical altercation with Lopez, another inmate. Petitioner was placed into administrative segregation and issued a disciplinary report for the use of force and violence. Shortly thereafter another inmate, Leabow, was fatally assaulted in the general population. Petitioner was charged with the use of force and violence against Lopez and on March 31, 1989, he was found guilty and assessed ninety days loss of behavioral credits.
Apparently because of the proximity in time and location of Petitioner's assault on Lopez and the murder of Leabow, Petitioner was issued another disciplinary charge on April 29, 1990, implicating him in a conspiracy to murder inmate Leabow. The matter also was referred to the District Attorney of Solano County for possible prosecution of Petitioner for conspiracy to commit murder. At the disciplinary hearing on the Leabow incident Petitioner was found guilty and sentenced to a twenty-nine month Security Housing Unit (SHU) term.
On February 27, 1990, Petitioner was granted a rehearing of the conspiracy charge by the Director of Corrections. Petitioner then sought a petition for a writ of habeas corpus from the Solano County Superior Court asking that no disciplinary hearing be held until the conclusion of the pending criminal proceedings concerning the same incident. On September 14, 1990, the court granted the petition and ordered the Department of Corrections not to conduct any administrative hearing relating to Petitioner's alleged violations stemming from the March 26, 1989, incident until the conclusion of the pending criminal proceedings. After a rehearing on the disciplinary charge, which apparently occurred sometime late in 1991, the disciplinary charge was dismissed.
Thereafter, Petitioner sought to have the records pertaining to the first conspiracy disciplinary hearing, at which he was found guilty, expunged, arguing that they are inaccurate because he did not testify at the hearing because of the pending criminal charges. His stated main concern is that records pertinent to the hearing will be used against him in future parole eligibility proceedings.
Petitioner exhausted his administrative appeals and also sought State habeas corpus relief on this matter. At the time he filed the present petition, Petitioner stated that his State habeas petition to the California Supreme Court was still pending. In the present petition Petitioner seeks expungement of the records associated with his first disciplinary hearing on the murder conspiracy charge from his prison file.
The Supreme Court has held consistently that any claim by a prisoner attacking the fact or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code. See Calderon v. Ashmus, 523 U.S. 740, 747 (1998); Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). This means that a parole or time credit claim that affects the legality or duration of a prisoner's custody, and a determination of which may likely result in entitlement to an earlier release, must be brought in habeas. See Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997); Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990), cert. denied, 498 U.S. 1126 (1991); Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); see also Ramirez v. Galaza, 334 F.3d 850, 858-59 (9th Cir. 2003) (implying that claim, which if successful would "necessarily" or "likely" accelerate the prisoner's release on parole, must be brought in a habeas petition).
However, where an inmate challenges the constitutional validity of the State procedures used to deny parole eligibility or parole suitability but does not seek earlier release, the claim is cognizable under § 1983. See Wilkinson v. Dotson, 125 S.Ct. 1242, 1247-48 (2005) (prisoners' parole claims seeking a new parole hearing need not be brought in habeas corpus because the relief sought would not necessarily "invalidate the duration of their confinement -- either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody."); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997) (if prisoner wins and is entitled to parole eligibility hearing this does not guarantee parole or necessarily shorten his prison sentence).
The Supreme Court has declined to address whether a challenge to a condition of confinement may be brought under habeas. See Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979); Fierro v. Gomez, 77 F.3d 301, 304 n.2 (9th Cir.), vacated on other grounds, 519 U.S. 918 (1996). However, the Ninth Circuit has held that "habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence." Ramirez, 334 F.3d at 859. A district court may construe a habeas petition by a prisoner attacking the conditions of his confinement as a civil rights action under 42 U.S.C. § 1983. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971).
Here, the Court is inclined to construe Petitioner's habeas petition as a civil rights action: the petition does not challenge the validity of a parole eligibility hearing at which parole was denied because of the old disciplinary record, and there is no allegation or indication that expungement of the record will "necessarily" shorten the duration of Petitioner's confinement. Moreover, requests to expunge records are traditionally brought as civil rights claims. See, e.g., Paul v. Davis, 424 U.S. 693, 711-714 (1976); Reyes v. Supervisor of DEA, et al., 834 F.2d 1093, 1097 (1st Cir. 1987) (no due process claim for false information maintained by police department); Pruett v. Levi, 622 F.2d 256, 258 (6th Cir. 1980) (mere existence of inaccuracy in FBI criminals files does not state constitutional claim).
Before construing the petition as a civil rights complaint, however, the Court will provide Petitioner the opportunity to clarify whether he is bringing his claim in a habeas corpus petition because he is challenging the results of a parole eligibility hearing and he maintains that expungement would "necessarily" shorten the duration of his confinement. Petitioner also must inform the Court whether he still has any State habeas petitions pending. If so, this habeas petition would have to be dismissed for failure to exhaust State remedies. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (the exhaustion requirement is not satisfied if there is a pending proceeding in State court).
Petitioner also must inform the Court whether he will proceed with this action as a civil rights complaint if it is so construed. That is, when Petitioner first filed this action it was categorized as a habeas corpus action and Petitioner paid the requisite $5.00 filing fee. See 28 U.S.C. § 1914. However, under § 1914, the filing fee for any civil action other than a petition for a writ of habeas corpus is $250.00. Ordinarily, a litigant is permitted to file a civil action in federal court without prepayment of fees or security if he makes affidavit that he is unable to pay such fees or give security therefor. See 28 U.S.C. § 1915(a). But if the litigant is a prisoner who alleges that he is unable to pay the full filing fee at the time of filing he will be required to pay the full amount of the filing fee even if he is granted in forma pauperis status. See id. § 1915(b)(1). This is done by way of an "installment plan," whereby the court will assess an initial payment and the prisoner will be required thereafter to make monthly payments of twenty percent of the preceding month's income credited to the prisoner's account until the full amount of the $250.00 filing fee is paid. See id.
Because Petitioner may not have been aware when he filed this action that in order to proceed with a civil rights action he would have to pay the amount of $250.00, whether in full in advance or by way of the in forma pauperis "installment plan," Petitioner must inform the Court expressly of his continued intent to prosecute this action if it is construed by the Court as a civil rights complaint.
For the foregoing reasons and good cause shown, the petition is DISMISSED WITH LEAVE TO AMEND. Within THIRTY (30) days from the date of this Order Petitioner shall respond to this Order by clarifying whether he is of the opinion that this is a bonafide habeas corpus petition, whether he has any pending State proceedings on these matters, and whether, if the Court construes the action as a civil rights action, he will proceed with its prosecution. In that case he will need to file an application to proceed in forma pauperis, along with the required documentation, or pay the $250.00 filing fee. The failure to respond to the Order in a timely manner will result in the dismissal of the petition without prejudice.
IT IS SO ORDERED.
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