United States District Court, C.D. California, Western Division
ORDER TO SHOW RE: DISMISSAL OF HABEAS
L. ABRAMS UNITED STATES MAGISTRATE JUDGE
DeJohnette (“DeJohnette”) initiated this action
on May 3, 2017, by filing a Petition for Writ of Habeas
Corpus by a Person in Federal Custody pursuant to 28 U.S.C.
§ 2241 (“Petition” or “Pet.”).
DeJohnette, however, is a state prisoner presently
incarcerated at the North Kern State Prison in Delano,
California, pursuant to a 2016 conviction in the Van Nuys
Superior Court. (Pet. at 2). Thus, it appears that to the
extent DeJohnette intended to bring a habeas action in this
Court, he used the wrong form, and instead should have filed
a petition pursuant to 28 U.S.C. § 2254. The Court
liberally construes the Petition as a habeas petition brought
by a prisoner in state custody under § 2254.
28 U.S.C. § 2254 empowers the Court to “entertain
an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court .
. . on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
See 28 U.S.C. § 2254(a). Claims directed to the
conditions of a petitioner's confinement may not
properly be asserted in a habeas petition, or as part of a
habeas petition. See 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 civil rights action.
See Crawford v. Bell, 599 F.2d 890, 891 (9th Cir.
1979) (“[T]he writ of habeas corpus is limited to
attacks upon the legality or duration of
confinement.”); see also Ramirez v. Galaza,
334 F.3d 850, 859 (9th Cir. 2003) (“habeas jurisdiction
is absent, and a [42 U.S.C.] § 1983 action proper, where
a successful challenge to a prison condition will not
necessarily shorten the prisoner's sentence”).
the Petition raises two claims: (1) Sergeant O. Gonzales
assaulted DeJohnette on November 21, 2016, at North Kern
State Prison, DeJohnette's place of incarceration; and
(2) Commanding Officer Perez retaliated against DeJohnette
based on the incident involving Sergeant Gonzales. (Pet. at
3). These claims thus relate to an alleged assault against
DeJohnette by a prison official, and some unspecified
retaliation against him by the commanding officer as a result
of that incident. These claims do not concern the fact or
duration of DeJohnette's sentence. As such, the claims
are appropriately raised in a civil rights action, not a
the Court does have discretion to construe the instant
Petition as a civil rights complaint pursuant to 42 U.S.C.
§ 1983 (see Hansen v. May, 502 F.2d 728, 729-30
(9th Cir. 1974)), under the circumstances here the Court will
not exercise its discretion to convert the Petition
into a civil rights complaint. First, there is no indication
in the Petition that DeJohnette has exhausted his available
administrative remedies. Additionally, prisoners filing civil
rights actions, unlike prisoners filing habeas actions, are
liable for the full amount of the $350 filing fee.
See 28 U.S.C. § 1915(b)(1); Naddi v.
Hill, 106 F.3d 275 (9th Cir. 1997) (in forma pauperis
provisions of § 1915, as amended by the Prison
Litigation Reform Act of 1995, do not apply to habeas
actions). Here, DeJohnette has not paid the filing fee or
submitted a completed Declaration in Support of Request to
Proceed Without Prepayment of Filing Fees, including an
authorization to deduct the filing fee from his prison trust
account, which is required in this district in order to file
a complaint in a civil action without prepayment of fees.
See 28 U.S.C. § 1915(a)(2). Accordingly, the
Court chooses not to exercise its discretion to construe the
Petition as a civil rights complaint.
the federal venue statute requires that a civil action, other
than one based on diversity jurisdiction, be brought only in:
“(1) a judicial district in which any defendant
resides, if all defendants are residents of the State in
which the district is located; (2) a judicial district in
which a substantial part of the events or omissions giving
rise to the claim occurred . . .; or (3) if there is no
district in which an action may otherwise be brought as
provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction
with respect to such action.” 28 U.S.C. § 1391(b).
DeJohnette's claims arise from an incident that occurred
on November 21, 2016, during his incarceration at North Kern
State Prison, which is located in Kern County, in the
Eastern District of California. 28 U.S.C. §
84(b). DeJohnette alleges that the two individuals involved
in the incident are employees of North Kern State Prison, and
it is likely that both reside in the vicinity of that
institution. There is no evidence that either resides in the
Central District of California. It does not appear that the
third venue criterion applies at all, or that any basis
exists for venue here in the Central District. Thus, even if
DeJohnette intended to bring this action as a civil rights
action, venue is proper in the Eastern District of California
pursuant to 28 U.S.C. § 1391(b)(1) or (2). Pursuant to
28 U.S.C. § 1406(a), if venue does not properly lie in
this District, then the Court either must dismiss the action,
or if it be in the interest of justice, must transfer the
action to the proper district. See Starnes v.
McGuire, 512 F.2d 918, 932 (D.C. Cir. 1974).
on the foregoing, no later than June 5, 2017, DeJohnette is
ordered to show cause why this action should not be dismissed
for failure to state a claim for habeas relief.
Alternatively, if DeJohnette wishes to pursue his civil
rights claims, no later than June 5, 2017, he may voluntarily
dismiss this action using the attached form titled
“Notice of Voluntary Dismissal Pursuant to Federal
Rules of Civil Procedure 41(a) or (c), ” and re-file
his claims directly in the United States District Court of
the Eastern District of California as a civil rights
action. In that case, in addition to the Notice of
Voluntary Dismissal to be filed in this Court, DeJohnette
should also file a separate Civil Rights Complaint in the
United States District Court for the Eastern District of
California using the Eastern District of California's
Civil Rights Complaint form If warranted, DeJohnette must
also submit the appropriate Eastern District of California
forms for a prisoner in a civil action seeking to proceed in
forma pauperis. Otherwise, he must pay the full amount of the
filing fee (which is now $350 plus any applicable
is advised that his failure to timely file a response to this
Order to Show Cause, as set forth herein, will result in
dismissal of his Petition for failure to state a claim,
and/or for failure to prosecute and follow Court orders.
Court Clerk is directed to send DeJohnette a blank Central
District form titled “Notice of Dismissal Pursuant to
Federal Rules of Civil Procedure 41(a) or (c), ” and a
copy of the Eastern District's “Prisoner Civil
Rights Packet” along with this Order to Show Cause.
 Because DeJohnette was confined in a
prison in Kern County when his rights were allegedly
violated, he should file his action in the Fresno Division of
the Eastern District and address his filing to: Clerk of the
U.S. District Court for the Eastern District of California,
2500 Tulare Street, Fresno, California 93721. (See