United States District Court, E.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
ORDER DENYING MOTION TO APPOINT AS COUNSEL AS MOOT (ECF No. 1)
STANLEY A. BOONE, Magistrate Judge.
On June 11, 2015, Petitioner filed the instant petition for writ of habeas corpus. Petitioner has consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition... that the petitioner is not entitled to relief." Rule 4 of the Rules Governing Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution...." 28 U.S.C. § 2254(a).
A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
A. Conditions of Confinement
In this case, Petitioner is not challenging a conviction. Petitioner argues that he was assaulted by correctional officers and that they used excessive force on him. (Pet., ECF No. 1). The claims that Petitioner's rights were violated by the officers using excessive force are challenges to the conditions of Petitioner's confinement, not the fact or duration of that confinement. Thus, Petitioner is not entitled to habeas corpus relief on his claims that are conditions of confinement. Should Petitioner wish to pursue these claims, Petitioner must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. The Court does not express an opinion as to the merits of such a civil rights complaint.
A habeas petition may be construed as a Section 1983 civil rights complaint. Wilwording v. Swenson, 404 U.S. 249, 251 (1971). However, the fee is now $400 ($350.00 filing fee plus $50.00 administrative fee) for civil rights cases, and under the Prisoner Litigation Reform Act, the prisoner is required to pay it by way of deductions from income to the prisoner's trust account, even if granted in forma pauperis status. See 28 U.S.C. § 1915(b)(1). 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. Therefore, the Court will not construe the petition as a Section 1983 civil rights complaint, but will dismiss the claims without prejudice. The Clerk of Court shall send Petitioner a blank civil rights complaint form along with a copy of this Order.
Petitioner has pending charges in state court for this incident involving Officers Lewis and Lopez. (ECF No. 1 at 2). To the extent that Petitioner is challenging the pending state court proceedings, the Court will abstain from hearing these claims at this time. Under principles of comity and federalism, a federal court should not interfere with ongoing state criminal proceedings by granting injunctive or declaratory relief except under special circumstances. See Younger v. Harris, 401 U.S. 37, 43-54 (1971). Younger abstention is required when: (1) state proceedings, judicial in nature, are pending; (2) the state proceedings involve important state interests; and (3) the state proceedings afford adequate opportunity to raise the constitutional issue. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994).
All three of the Younger criteria are satisfied here. First, Petitioner's case in California state court is "ongoing" in that petitioner was pending trial on these charges at the time he filed the petition and it appears that Petitioner is still pending trial on these charges. See Columbia Basin Apartment Ass'n v. City of Pasco, 268 F.3d 791, 801 (9th Cir. 2001) (holding that the state court proceedings are deemed ongoing under the first prong of the Younger test if the state court suit was pending at the time of the federal suit's filing). Second, the state has an important interest in passing upon and correcting violations of a defendant's rights. See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003). Third, petitioner has an adequate state forum in which to pursue his claim, even if the state court of appeal affirms his conviction. See Penzoil Co. v. Texaco, 481 U.S. 1, 15 (1987) (holding that federal courts should assume that state procedures will afford an adequate opportunity for consideration of constitutional claims "in the absence of unambiguous authority to the contrary").
Therefore, the Younger requirements are satisfied in the present case, and abstention is required unless extraordinary circumstances exist, such as bad faith, harassment, or irreparable harm if the court abstains. See Colorado River Water Conservation Dist. V. United States, 424 U.S. 800, 817 n.22 (1976); Middlesex County Ethics Comm., 457 U.S. at 437. Petitioner has not made any showing of extraordinary circumstances indicating that he will suffer irreparable harm if the court abstains until after he has completed his direct appeal. See Younger, 401 U.S. at 45-46; Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972). Nor do Petitioner's claims fall within the narrow exception to the Younger doctrine; namely Petitioner makes no claim that federal habeas review is necessary to prevent a violation of the Double Jeopardy Clause or to enforce his right to a speedy trial. See Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992). Accordingly, the Court should abstain from interfering with ...