Buckelew v. Gore

• Court: District Court, S.D. California
• Decided: May 19, 2020
• Docket: 3:20-cv-00835
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DION SCOTT BUCKELEW, Case No.: 20cv0835 BAS (AGS)

12 Petitioner, ORDER DISMISSNG CASE 13 v. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 14 SHERIFF WILLIAM D. GORE, et al., 15 Respondents. 16 17 Petitioner Dion Scott Buckelew, proceeding pro se, has filed a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 FAILURE TO SATISFY FILING FEE REQUIREMENT 20 Petitioner has not paid the $5.00 filing fee and has not moved to proceed in forma 21 pauperis. A Petition for Writ of Habeas Corpus must either be accompanied by a $5.00 22 filing fee or an application to proceed in forma pauperis. See Local Rule 3(a), 28 U.S.C. 23 foll. § 2254. 24 FAILURE TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS 25 Upon review of the Petition, it appears to the Court that a Petition for Writ of Habeas 26 Corpus brought pursuant to § 2254 is not the proper vehicle for the claims Petitioner 27 presents. Petitioner lists various problems he claims he is facing in prison. Specifically, 28 Petitioner claims he is being denied access to the courts and the law library and is being 1 retaliated against for filing grievances. (“Pet.,” ECF No. 1 at 3–4.) Petitioner’s claims are 2 not cognizable on habeas because they do not challenge the constitutional validity or 3 duration of confinement. See 28 U.S.C. § 2254(a); Heck v. Humphrey, 512 U.S. 477, 480– 4 85 (1994); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); 5 Challenges to the fact or duration of confinement are brought by petition for a writ 6 of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement 7 are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser, 411 U.S. at 8 488–500. When a state prisoner is challenging the very fact or duration of his physical 9 imprisonment, and the relief he seeks is a determination that he is entitled to immediate 10 release or a speedier release from that imprisonment, his sole federal remedy is a writ of 11 habeas corpus. Id. at 500. On the other hand, a § 1983 action is a proper remedy for a state 12 prisoner who is making a constitutional challenge to the conditions of his prison life, but 13 not to the fact or length of his custody. Id. at 499; McIntosh v. U.S. Parole Comm’n, 115 14 F.3d 809, 811–12 (10th Cir. 1997). It appears that Petitioner challenges the conditions of 15 his prison life, but not the fact or length of his custody. Thus, Petitioner has not stated a 16 cognizable habeas claim pursuant to § 2254. 17 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 18 of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 19 annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, 28 20 U.S.C. foll. § 2254. Here, it is plain from the petition that Petitioner is not presently entitled 21 to federal habeas relief because he has not alleged that the state court violated his federal 22 rights. 23 CONCLUSION 24 For the foregoing reasons, the Court DISMISSES this case without prejudice and 25 with leave to amend. If Petitioner wishes to proceed with this action he must, no later 26 than July 24, 2020: (1) pay the $5.00 fee or submit adequate proof he cannot pay the fee; 27 and (2) file a First Amended Petition that cures the pleading deficiencies outlined in this 28 Order. For Petitioner’s convenience, the Clerk of Court shall attach to this Order a blank 1 || application to proceed in forma pauperis and a blank First Amended Petition pursuant to 2 U.S.C. § 2254 form. 3 IT ISSO ORDERED. 4 ||DATED: May 19, 2020 ( (. ys hank 5 nisi Cynthia Bashant 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28