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11 TREMAYNE CARROLL, Case No.: 20-CV-1651 JLS (MDD) 12 Petitioner, ORDER DISMISSING PETITION 13 v. WITHOUT PREJUDICE 14 RALPH DIAZ, Warden, 15 Respondent. 16 17 Petitioner Tremayne Carroll, a state prisoner incarcerated at Mule Creek State Prison 18 in Ione, California, and proceeding pro se, has submitted a Petition for a Writ of Habeas 19 Corpus pursuant to 28 U.S.C. § 2254 (“Pet.,” ECF No. 1). Petitioner claims his federal 20 constitutional rights have been violated by inadequate medical care; retaliatory destruction 21 of his legal papers and interference with his access to the courts; a failure to accommodate 22 his disabilities; and a failure properly to calculate his sentence, including erroneous 23 application and loss of custody credits and a failure to properly recalculate his sentence of 24 conviction in light of his challenges under Propositions 36 and 57. Id. at 1–6. He seeks 25 release from custody due to his medical conditions and because prison authorities are 26 encouraging inmates to kill him. Id. at 6. Petitioner references two other cases he has filed 27 in this Court, Carroll v. Pollard, No. 20-CV-10 BAS (BGS) (S.D. Cal. filed Jan. 2, 2020) 28 (the “Prior Petition”), a habeas case filed pursuant to 28 U.S.C. § 2254 that was dismissed 1 without leave to amend but without prejudice to file a new habeas petition (apparently the 2 instant one), and Carroll v. Toele, No. 20-CV-79 BAS (RBM) (S.D. Cal. filed Jan. 10, 3 2020) (the “Civil Rights Action”), a civil rights case filed pursuant 42 U.S.C. § 1983 that 4 currently remains pending. Pet. at 1. 5 ANALYSIS 6 Rule 4 of the Rules Governing § 2254 Cases provides that: “If it plainly appears 7 from the petition and any attached exhibits that the petitioner is not entitled to relief in the 8 district court, the judge must dismiss the petition and direct the clerk to notify the 9 petitioner.” Rule 4, 28 U.S.C. foll. § 2254. In this case, it is plain from the Petition that 10 Petitioner is not presently entitled to federal habeas relief because he has not satisfied the 11 filing fee requirement, has not used a court-approved petition form, and has not alleged 12 that the potential restoration of custody credits would “necessarily” impact the length of 13 his custody. 14 First, Petitioner has failed to pay the $5.00 filing fee or to submit a request to proceed 15 in forma pauperis. Because this Court cannot proceed until Petitioner either has paid the 16 $5.00 filing fee or has qualified to proceed in forma pauperis, the Court DISMISSES 17 WITHOUT PREJUDICE the case. 18 Second, a Petition for Writ of Habeas Corpus must be submitted in accordance with 19 the Local Rules of the Southern District of California. See Rule 2(c), 28 U.S.C. foll § 2254; 20 see also S.D. Cal. Civ LR HC.2(b). To comply with the Local Rules, the petition must be 21 submitted upon a court-approved form and in accordance with the instructions approved 22 by the Court. Petitioner has not submitted his Petition on a court-approved form. 23 Third, the instant Petition seeks a release from custody and challenges the conditions 24 of Petitioner’s confinement. “[W]hen a state prisoner is challenging the very fact or 25 duration of his physical imprisonment, and the relief he seeks is a determination that he is 26 entitled to immediate release or a speedier release from that imprisonment, his sole federal 27 remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A 28 civil rights action pursuant to 42 U.S.C. § 1983 “is a proper remedy for a state prisoner 1 who is making a constitutional challenge to the conditions of his prison life, but not to the 2 fact or length of his custody.” Id. at 499. While restoration of custody credits would fall 3 within habeas review if it were to result in immediate or earlier release from custody, if 4 “the restoration of good-time credits would not necessarily affect the length of time to be 5 served, then the claim falls outside the core of habeas and may be brought in § 1983.” 6 Nettles v. Grounds, 830 F.3d 922, 929 (9th Cir. 2016) (en banc) (citing Muhammad v. 7 Close, 540 U.S. 749, 754–55 (2004)). 8 Petitioner does not offer specifics as to whether his claims alleging the loss of 9 custody credits or the failure properly to calculate his sentence of conviction, if granted, 10 would result in earlier or immediate release from custody. In fact, in the Prior Petition 11 referenced in the instant Petition, the Court noted that the record presented by Petitioner 12 reflects he is serving an indeterminate sentence of life in prison under California’s Three 13 Strikes Law and that it is unlikely a restoration of custody credits would affect the duration 14 of his sentence.1 See Prior Pet. at 60; Order Dismissing Petition Without Prejudice at 3, 15 Carroll v. Pollard, No. 20-CV-10 BAS (BGS) (S.D. Cal. filed Jan. 16, 2020), ECF No. 4 16 (the “Prior Habeas Order”). The remainder of Petitioner’s claims challenge the conditions 17 of his prison life and would not “necessarily” impact the length of his custody. Nettles, 18 830 F.3d at 929; see also Preiser, 411 U.S. at 499. Petitioner was instructed in his previous 19 habeas case that claims which fall outside the core of habeas corpus must be brought, if at 20 all, in a civil rights case under 42 U.S.C. § 1983, see Prior Habeas Order at 2–3, and he 21 / / / 22
23 1 The Second Amended Petition in the prior habeas case was dismissed without further leave to amend 24 but without prejudice to Petitioner filing a new habeas case in this Court challenging the loss of custody 25 credits while housed in this District, assuming he could overcome the failure adequately to plead that success on the merits of his claims would result in immediate or speedier release from custody. Order 26 Dismissing Second Amended Petition Without Prejudice and Without Leave to Amend at 3–4, Carroll v. Pollard, No. 20-CV-10 BAS (BGS) (S.D. Cal. filed Aug. 10, 2020), ECF No. 11. He also was instructed 27 that his challenge to the recalculation of his sentence of conviction under Proposition 36 should be brought, if at all, in the District where that challenge was adjudicated, i.e., the Central District of 28 1 filed the currently-pending 42 U.S.C. § 1983 case referenced in the instant Petition. See 2 Civil Rights Action. 3 While Petitioner’s claims, as pled, are not cognizable in habeas review, the Ninth 4 Circuit has provided that “a district court may construe a petition for habeas corpus to plead 5 a cause of action under § 1983 after notifying and obtaining informed consent from the 6 prisoner.” Nettles, 830 F.3d at 936 (“If the complaint is amenable to conversion on its face, 7 meaning that it names the correct defendants and seeks the correct relief, the court may 8 recharacterize the petition so long as it warns the pro se litigant of the consequences of the 9 conversion and provides an opportunity for the litigant to withdraw or amend his or her 10 complaint.”).
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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10
11 TREMAYNE CARROLL, Case No.: 20-CV-1651 JLS (MDD) 12 Petitioner, ORDER DISMISSING PETITION 13 v. WITHOUT PREJUDICE 14 RALPH DIAZ, Warden, 15 Respondent. 16 17 Petitioner Tremayne Carroll, a state prisoner incarcerated at Mule Creek State Prison 18 in Ione, California, and proceeding pro se, has submitted a Petition for a Writ of Habeas 19 Corpus pursuant to 28 U.S.C. § 2254 (“Pet.,” ECF No. 1). Petitioner claims his federal 20 constitutional rights have been violated by inadequate medical care; retaliatory destruction 21 of his legal papers and interference with his access to the courts; a failure to accommodate 22 his disabilities; and a failure properly to calculate his sentence, including erroneous 23 application and loss of custody credits and a failure to properly recalculate his sentence of 24 conviction in light of his challenges under Propositions 36 and 57. Id. at 1–6. He seeks 25 release from custody due to his medical conditions and because prison authorities are 26 encouraging inmates to kill him. Id. at 6. Petitioner references two other cases he has filed 27 in this Court, Carroll v. Pollard, No. 20-CV-10 BAS (BGS) (S.D. Cal. filed Jan. 2, 2020) 28 (the “Prior Petition”), a habeas case filed pursuant to 28 U.S.C. § 2254 that was dismissed 1 without leave to amend but without prejudice to file a new habeas petition (apparently the 2 instant one), and Carroll v. Toele, No. 20-CV-79 BAS (RBM) (S.D. Cal. filed Jan. 10, 3 2020) (the “Civil Rights Action”), a civil rights case filed pursuant 42 U.S.C. § 1983 that 4 currently remains pending. Pet. at 1. 5 ANALYSIS 6 Rule 4 of the Rules Governing § 2254 Cases provides that: “If it plainly appears 7 from the petition and any attached exhibits that the petitioner is not entitled to relief in the 8 district court, the judge must dismiss the petition and direct the clerk to notify the 9 petitioner.” Rule 4, 28 U.S.C. foll. § 2254. In this case, it is plain from the Petition that 10 Petitioner is not presently entitled to federal habeas relief because he has not satisfied the 11 filing fee requirement, has not used a court-approved petition form, and has not alleged 12 that the potential restoration of custody credits would “necessarily” impact the length of 13 his custody. 14 First, Petitioner has failed to pay the $5.00 filing fee or to submit a request to proceed 15 in forma pauperis. Because this Court cannot proceed until Petitioner either has paid the 16 $5.00 filing fee or has qualified to proceed in forma pauperis, the Court DISMISSES 17 WITHOUT PREJUDICE the case. 18 Second, a Petition for Writ of Habeas Corpus must be submitted in accordance with 19 the Local Rules of the Southern District of California. See Rule 2(c), 28 U.S.C. foll § 2254; 20 see also S.D. Cal. Civ LR HC.2(b). To comply with the Local Rules, the petition must be 21 submitted upon a court-approved form and in accordance with the instructions approved 22 by the Court. Petitioner has not submitted his Petition on a court-approved form. 23 Third, the instant Petition seeks a release from custody and challenges the conditions 24 of Petitioner’s confinement. “[W]hen a state prisoner is challenging the very fact or 25 duration of his physical imprisonment, and the relief he seeks is a determination that he is 26 entitled to immediate release or a speedier release from that imprisonment, his sole federal 27 remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A 28 civil rights action pursuant to 42 U.S.C. § 1983 “is a proper remedy for a state prisoner 1 who is making a constitutional challenge to the conditions of his prison life, but not to the 2 fact or length of his custody.” Id. at 499. While restoration of custody credits would fall 3 within habeas review if it were to result in immediate or earlier release from custody, if 4 “the restoration of good-time credits would not necessarily affect the length of time to be 5 served, then the claim falls outside the core of habeas and may be brought in § 1983.” 6 Nettles v. Grounds, 830 F.3d 922, 929 (9th Cir. 2016) (en banc) (citing Muhammad v. 7 Close, 540 U.S. 749, 754–55 (2004)). 8 Petitioner does not offer specifics as to whether his claims alleging the loss of 9 custody credits or the failure properly to calculate his sentence of conviction, if granted, 10 would result in earlier or immediate release from custody. In fact, in the Prior Petition 11 referenced in the instant Petition, the Court noted that the record presented by Petitioner 12 reflects he is serving an indeterminate sentence of life in prison under California’s Three 13 Strikes Law and that it is unlikely a restoration of custody credits would affect the duration 14 of his sentence.1 See Prior Pet. at 60; Order Dismissing Petition Without Prejudice at 3, 15 Carroll v. Pollard, No. 20-CV-10 BAS (BGS) (S.D. Cal. filed Jan. 16, 2020), ECF No. 4 16 (the “Prior Habeas Order”). The remainder of Petitioner’s claims challenge the conditions 17 of his prison life and would not “necessarily” impact the length of his custody. Nettles, 18 830 F.3d at 929; see also Preiser, 411 U.S. at 499. Petitioner was instructed in his previous 19 habeas case that claims which fall outside the core of habeas corpus must be brought, if at 20 all, in a civil rights case under 42 U.S.C. § 1983, see Prior Habeas Order at 2–3, and he 21 / / / 22
23 1 The Second Amended Petition in the prior habeas case was dismissed without further leave to amend 24 but without prejudice to Petitioner filing a new habeas case in this Court challenging the loss of custody 25 credits while housed in this District, assuming he could overcome the failure adequately to plead that success on the merits of his claims would result in immediate or speedier release from custody. Order 26 Dismissing Second Amended Petition Without Prejudice and Without Leave to Amend at 3–4, Carroll v. Pollard, No. 20-CV-10 BAS (BGS) (S.D. Cal. filed Aug. 10, 2020), ECF No. 11. He also was instructed 27 that his challenge to the recalculation of his sentence of conviction under Proposition 36 should be brought, if at all, in the District where that challenge was adjudicated, i.e., the Central District of 28 1 filed the currently-pending 42 U.S.C. § 1983 case referenced in the instant Petition. See 2 Civil Rights Action. 3 While Petitioner’s claims, as pled, are not cognizable in habeas review, the Ninth 4 Circuit has provided that “a district court may construe a petition for habeas corpus to plead 5 a cause of action under § 1983 after notifying and obtaining informed consent from the 6 prisoner.” Nettles, 830 F.3d at 936 (“If the complaint is amenable to conversion on its face, 7 meaning that it names the correct defendants and seeks the correct relief, the court may 8 recharacterize the petition so long as it warns the pro se litigant of the consequences of the 9 conversion and provides an opportunity for the litigant to withdraw or amend his or her 10 complaint.”). The Court declines to construe Petitioner’s action as a civil rights complaint 11 pursuant to 42 U.S.C. § 1983 because he already has such an action pending in this Court. 12 Although his place of confinement has been changed since he filed the prior action from 13 R.J. Donovan Correctional Facility in this District to Mule Creek State Prison in the Eastern 14 District of California, even to the extent he has new or additional allegations regarding the 15 conditions of confinement at his new institution, his Petition is not amenable to conversion 16 because Petitioner has named the Warden of his new institution as the only Respondent but 17 does not make any specific allegations against the Warden. See Leer v. Murphy, 844 F.2d 18 628, 633 (9th Cir. 1988) (“The inquiry into causation must be individualized and focus on 19 the duties and responsibilities of each individual defendant whose acts or omissions are 20 alleged to have caused a constitutional deprivation.”) 21 In addition, a review of Petitioner’s litigation history reflects he has had three prior 22 prisoner civil actions dismissed for being frivolous, malicious, or failing to state a claim 23 upon which relief may be granted. See Carroll v. Ahboot, No. 16-CV-1853 LAB (MDD), 24 2017 WL 104596, at *3 n.1 (S.D. Cal. Jan. 11, 2017) (collecting cases); see also 28 U.S.C. 25 § 1915(g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil 26 action or proceeding under this section if the prisoner has, on 3 or more prior occasions, 27 while incarcerated or detained in any facility, brought an action or appeal in a court of the 28 United States that was dismissed on the grounds that it is frivolous, malicious, or fails to 1 ||state a claim upon which relief may be granted, unless the prisoner is under imminent 2 || danger of serious physical injury.”) As such, the Court also declines to convert the instant 3 || Petition into a civil rights complaint because it might expose Petitioner to the PLRA, which 4 would bar him from proceeding in forma pauperis and would make the civil filing fee 5 || payable in full upon filing unless Petitioner demonstrates that he is under imminent danger 6 || of serious physical injury. Bruce v. Samuels, 577 U.S. __, 136 S. Ct. 627, 630 (2016). 7 CONCLUSION 8 In light of the foregoing, the Court DISMISSES WITHOUT PREJUDICE the 9 || Petition. If Petitioner wishes to challenge the loss of time or credits affecting the length or 10 || fact of his custody as a result of actions taken while he was housed in this District, he must, 11 |/no later than October 26, 2020, (1) file a First Amended Petition on a court-approved 12 || form that sets forth a cognizable habeas corpus claim; and (2) either (a) pay the $5.00 filing 13 || fee, or (b) submit an application to proceed in forma pauperis. The Clerk of Court SHALL 14 ||SEND Petitioner a blank 28 U.S.C. § 2254 amended habeas petition form and a blank in 15 || forma pauperis application with a copy of this Order. 16 IT IS SO ORDERED. 17 18 Dated: August 25, 2020 . tt 19 jae Janis L. Sammartino 20 United States District Judge 21 22 23 24 25 26 27 28