James Harrison Fisher v. Acevedo, Warden

S.D. California

James Harrison Fisher v. Acevedo, Warden

DecidedOctober 14, 2025

Docket3:25-cv-02677

StatusUnknown

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 JAMES HARRISON FISHER, Case No.: 25cv2677 LL (MSB)

10 Petitioner, ORDER DENYING MOTION TO 11 v. PROCEED IN FORMA PAUPERIS AND DISMISSING CASE WITHOUT 12 ACEVEDO, Warden, PREJUDICE 13 Respondent. [ECF No. 2] 14

15 16 James Harrison Fisher (“Petitioner”), a state prisoner proceeding pro se, has filed a 17 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a prison 18 disciplinary ruling incurred during his incarceration at Richard J. Donovan Correctional 19 Facility in San Diego, California. See ECF No. 1. Petitioner has also filed a motion to 20 proceed in forma pauperis. ECF No. 2. Upon review, and for the reasons discussed below, 21 the Court DENIES the motion to proceed in forma pauperis and DISMISSES the case 22 without prejudice. 23 MOTION TO PROCEED IN FORMA PAUPERIS 24 A motion to proceed in forma pauperis made by a state prisoner must not only 25 include an affidavit with a statement of all assets showing an inability to pay the $5.00 26 filing fee, but must also include “a certificate from the warden or other appropriate officer 27 of the place of confinement showing the amount of money or securities that the petitioner 28 has in any account in the institution.” R. 3(a)(2), Rules Governing Section 2254 Cases 1 (2019); see also S.D. Cal. CivLR 3.2. The motion must also “contain a certified copy of 2 the trust fund account statement (or institutional equivalent) for the prisoner for the 6- 3 month period immediately preceding the filing of the suit or notice of appeal, obtained 4 from the appropriate official of each prison at which the prisoner is or was confined.” S.D. 5 Cal. CivLR 3.2; see also 28 U.S.C. § 1915(a)(2). 6 While Petitioner has submitted the required affidavit, see ECF No. 2 at 1-4, he has 7 failed to complete it, instead leaving several sections blank and unaddressed. See id. at 3. 8 Additionally, Petitioner has failed to provide the Court with the required prison certificate 9 and certified copy of his trust fund account statement. See generally ECF No. 2. Because 10 Petitioner has not provided the Court with the required financial information, the Court 11 DENIES the motion to proceed in forma pauperis without prejudice to resubmission. 12 Because this Court cannot proceed until Petitioner has either paid the $5.00 filing 13 fee or qualified to proceed in forma pauperis, the instant case is subject to dismissal without 14 prejudice. See R. 3(a), Rules Governing Section 2254 Cases (2019). 15 FAILURE TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS 16 The Petition is also subject to dismissal because a petition for writ of habeas corpus 17 brought pursuant to 28 U.S.C. § 2254 is not the proper vehicle for the claim Petitioner 18 presents. Challenges to the fact or duration of confinement are brought by petition for a 19 writ of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of 20 confinement are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser v. 21 Rodriguez, 411 U.S. 475, 488-500 (1973). “When a state prisoner is challenging the very 22 fact or duration of his physical imprisonment, and the relief he seeks is a determination that 23 he is entitled to immediate release or a speedier release from that imprisonment, his sole 24 federal remedy is a writ of habeas corpus.” Id. at 500. Meanwhile, “a § 1983 action is a 25 proper remedy for a state prisoner who is making a constitutional challenge to the 26 conditions of his prison life, but not to the fact or length of his custody.” Id. at 499. 27 Here, Petitioner indicates the instant Petition concerns a challenge to a disciplinary 28 ruling in which he was “charged and found guilty of violating a law/rule/statute of CDCR 1 that does not exist” in violation of due process. ECF No. 1 at 6, 13. Specifically, Petitioner 2 “wrote sexually explicit fantasy letters/note to three of his female college professors,” and 3 as a result, he was eventually charged with “overfamiliarity.” Id. at 6. Petitioner contends 4 the charge and resultant disciplinary finding violates due process because he had no “fair 5 notice” or “warning” prohibiting the contested conduct and requests the reversal and 6 expungement of all records concerning this violation. Id. at 13-16. Petitioner asserts “[t]he 7 officer who filed the Rule Violation Report” knew there was no such rule or violation but 8 sought both to “stratagem or circumvent” the cited rule by punishing him for what he wrote 9 and “to have me punished by the Parole Board with a 5-year denial for something that is 10 not even an established rule violation.” Id. at 15. 11 First, the attached records and documents reflect Petitioner did not suffer any loss of 12 credits or other punishment that could have affected “the fact or length of his custody.” 13 Preiser, 411 U.S. at 499. Instead, it appears from the attached records and documents the 14 sole disciplinary result of this violation was “counseling.” See ECF No. 1-4 at 19-20 (state 15 appellate court noted: “The violation was at the ‘counseling only’ level,” and indicated that 16 Petitioner “admits he did not lose any good time credits, and it does not appear he lost any 17 privileges.”); see also id. at 37 (superior court noted: “Petitioner was found guilty of the 18 offense, but was not assessed a loss of credits as discipline. His only disciplinary 19 consequence was counseling.”); see also id. at 48 (rules violation report reflected discipline 20 imposed as “Counseling Only.”) Petitioner does not allege that the relief sought, if granted, 21 would result in his earlier or immediate release from imprisonment, and Petitioner himself 22 indicates he is serving a sentence of 25 years plus 2 years to run concurrent with a sentence 23 of 15 years to life. See id. at 4, 23. 24 Moreover, to the extent Petitioner seeks reversal and expungement of the contested 25 violation to avoid a potential future parole denial based on the contested violation, his claim 26 also does not sound in habeas because such a result “would not necessarily lead to 27 immediate or speedier release.” Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016) 28 (en banc) (“Success on the merits of [Petitioner’s] claim would not necessarily lead to 1 ||immediate or speedier release because the expungement of the challenged disciplinary 2 || violation would not necessarily lead to a grant of parole. . . .Because the parole board has 3 ||the authority to deny parole ‘on the basis of any of the grounds presently available to it,’ 4 || the presence of a disciplinary infraction does not compel the denial of parole, nor does an 5 || absence of an infraction compel the grant of parole.”’), quoting Ramirez v. Galaza, 334 F.3d 6 || 850, 859 (9th Cir. 2003). 7 Thus, Petitioner’s claim does not appear cognizable on habeas because it 1s unclear 8 || how he challenges the constitutional validity or duration of his confinement. See 28 U.S.C. 9 || § 2254(a); Preiser, 411 U.S. at 500; Heck v. Humphrey, 512 U.S. 477, 480-85 (1994); see 10 || also Nettles, 830 F.3d at 935.

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 JAMES HARRISON FISHER, Case No.: 25cv2677 LL (MSB)

10 Petitioner, ORDER DENYING MOTION TO 11 v. PROCEED IN FORMA PAUPERIS AND DISMISSING CASE WITHOUT 12 ACEVEDO, Warden, PREJUDICE 13 Respondent. [ECF No. 2] 14

15 16 James Harrison Fisher (“Petitioner”), a state prisoner proceeding pro se, has filed a 17 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a prison 18 disciplinary ruling incurred during his incarceration at Richard J. Donovan Correctional 19 Facility in San Diego, California. See ECF No. 1. Petitioner has also filed a motion to 20 proceed in forma pauperis. ECF No. 2. Upon review, and for the reasons discussed below, 21 the Court DENIES the motion to proceed in forma pauperis and DISMISSES the case 22 without prejudice. 23 MOTION TO PROCEED IN FORMA PAUPERIS 24 A motion to proceed in forma pauperis made by a state prisoner must not only 25 include an affidavit with a statement of all assets showing an inability to pay the $5.00 26 filing fee, but must also include “a certificate from the warden or other appropriate officer 27 of the place of confinement showing the amount of money or securities that the petitioner 28 has in any account in the institution.” R. 3(a)(2), Rules Governing Section 2254 Cases 1 (2019); see also S.D. Cal. CivLR 3.2. The motion must also “contain a certified copy of 2 the trust fund account statement (or institutional equivalent) for the prisoner for the 6- 3 month period immediately preceding the filing of the suit or notice of appeal, obtained 4 from the appropriate official of each prison at which the prisoner is or was confined.” S.D. 5 Cal. CivLR 3.2; see also 28 U.S.C. § 1915(a)(2). 6 While Petitioner has submitted the required affidavit, see ECF No. 2 at 1-4, he has 7 failed to complete it, instead leaving several sections blank and unaddressed. See id. at 3. 8 Additionally, Petitioner has failed to provide the Court with the required prison certificate 9 and certified copy of his trust fund account statement. See generally ECF No. 2. Because 10 Petitioner has not provided the Court with the required financial information, the Court 11 DENIES the motion to proceed in forma pauperis without prejudice to resubmission. 12 Because this Court cannot proceed until Petitioner has either paid the $5.00 filing 13 fee or qualified to proceed in forma pauperis, the instant case is subject to dismissal without 14 prejudice. See R. 3(a), Rules Governing Section 2254 Cases (2019). 15 FAILURE TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS 16 The Petition is also subject to dismissal because a petition for writ of habeas corpus 17 brought pursuant to 28 U.S.C. § 2254 is not the proper vehicle for the claim Petitioner 18 presents. Challenges to the fact or duration of confinement are brought by petition for a 19 writ of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of 20 confinement are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser v. 21 Rodriguez, 411 U.S. 475, 488-500 (1973). “When a state prisoner is challenging the very 22 fact or duration of his physical imprisonment, and the relief he seeks is a determination that 23 he is entitled to immediate release or a speedier release from that imprisonment, his sole 24 federal remedy is a writ of habeas corpus.” Id. at 500. Meanwhile, “a § 1983 action is a 25 proper remedy for a state prisoner who is making a constitutional challenge to the 26 conditions of his prison life, but not to the fact or length of his custody.” Id. at 499. 27 Here, Petitioner indicates the instant Petition concerns a challenge to a disciplinary 28 ruling in which he was “charged and found guilty of violating a law/rule/statute of CDCR 1 that does not exist” in violation of due process. ECF No. 1 at 6, 13. Specifically, Petitioner 2 “wrote sexually explicit fantasy letters/note to three of his female college professors,” and 3 as a result, he was eventually charged with “overfamiliarity.” Id. at 6. Petitioner contends 4 the charge and resultant disciplinary finding violates due process because he had no “fair 5 notice” or “warning” prohibiting the contested conduct and requests the reversal and 6 expungement of all records concerning this violation. Id. at 13-16. Petitioner asserts “[t]he 7 officer who filed the Rule Violation Report” knew there was no such rule or violation but 8 sought both to “stratagem or circumvent” the cited rule by punishing him for what he wrote 9 and “to have me punished by the Parole Board with a 5-year denial for something that is 10 not even an established rule violation.” Id. at 15. 11 First, the attached records and documents reflect Petitioner did not suffer any loss of 12 credits or other punishment that could have affected “the fact or length of his custody.” 13 Preiser, 411 U.S. at 499. Instead, it appears from the attached records and documents the 14 sole disciplinary result of this violation was “counseling.” See ECF No. 1-4 at 19-20 (state 15 appellate court noted: “The violation was at the ‘counseling only’ level,” and indicated that 16 Petitioner “admits he did not lose any good time credits, and it does not appear he lost any 17 privileges.”); see also id. at 37 (superior court noted: “Petitioner was found guilty of the 18 offense, but was not assessed a loss of credits as discipline. His only disciplinary 19 consequence was counseling.”); see also id. at 48 (rules violation report reflected discipline 20 imposed as “Counseling Only.”) Petitioner does not allege that the relief sought, if granted, 21 would result in his earlier or immediate release from imprisonment, and Petitioner himself 22 indicates he is serving a sentence of 25 years plus 2 years to run concurrent with a sentence 23 of 15 years to life. See id. at 4, 23. 24 Moreover, to the extent Petitioner seeks reversal and expungement of the contested 25 violation to avoid a potential future parole denial based on the contested violation, his claim 26 also does not sound in habeas because such a result “would not necessarily lead to 27 immediate or speedier release.” Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016) 28 (en banc) (“Success on the merits of [Petitioner’s] claim would not necessarily lead to 1 ||immediate or speedier release because the expungement of the challenged disciplinary 2 || violation would not necessarily lead to a grant of parole. . . .Because the parole board has 3 ||the authority to deny parole ‘on the basis of any of the grounds presently available to it,’ 4 || the presence of a disciplinary infraction does not compel the denial of parole, nor does an 5 || absence of an infraction compel the grant of parole.”’), quoting Ramirez v. Galaza, 334 F.3d 6 || 850, 859 (9th Cir. 2003). 7 Thus, Petitioner’s claim does not appear cognizable on habeas because it 1s unclear 8 || how he challenges the constitutional validity or duration of his confinement. See 28 U.S.C. 9 || § 2254(a); Preiser, 411 U.S. at 500; Heck v. Humphrey, 512 U.S. 477, 480-85 (1994); see 10 || also Nettles, 830 F.3d at 935. 11 CONCLUSION AND ORDER 12 Accordingly, the Court DENIES Petitioner’s motion to proceed in forma pauperis 13 || [ECF No. 2] and DISMISSES the case without prejudice. If Petitioner wishes to reopen 14 proceed with his habeas case by challenging the fact or duration of his confinement, 15 || he must submit, no later than December 10, 2025, a copy of this Order along with BOTH: 16 a completed First Amended Petition form that cures the pleading deficiencies outlined 17 |/in the instant Order and (2) either the $5.00 fee or adequate proof of his inability to pay 18 || the filing fee. If Petitioner wishes to challenge the conditions of his confinement, he must 19 || file a new civil rights action pursuant to 42 U.S.C. § 1983, which will be given a new case 20 ||number. The Clerk of Court is directed to send Petitioner a blank 28 U.S.C. § 2254 Habeas 21 || Petition form and in forma pauperis application and a blank 42 U.S.C. § 1983 Civil Rights 22 ||Complaint form and in forma pauperis application together with a copy of this Order. 23 || IT IS SO ORDERED. 24 Dated: October 14, 2025 NO 25 QF | 26 Honorable Linda Lopez 57 United States District Judge 28

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