O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DANIEL HARPER ) NO. CV 20-4746-JGB (KS) 11 Petitioner, ) 12 v. ) ORDER: DISMISSING PETITION FOR ) 13 CALIFORNIA DEPT. OF ) WRIT OF HABEAS CORPUS WITHOUT 14 CORRECTIONS AND ) PREJUDICE; DENYING A CERTIFICATE REHABILITATION; C/O WINFELD, ) OF APPEALABILITY 15 Respondents. ) 16 _________________________________ ) 17 18 On May 28, 2020, Daniel Harper (“Petitioner”), who is currently in California custody 19 and housed at the California Medical Facility in Vacaville, California, filed a

2254 habeas petition (“Petition”) and a request to proceed in forma pauperis. (Dkt. No. 1.) 21 Petitioner does not identify the date of, or basis for, his detention or incarceration. (Id.) 22 After a thorough review of the Petition and its attachments, the Court concludes that the 23 Petition must be summarily dismissed for failing to state a cognizable habeas claim. 24 // 25 // 26 // 27 // 28 1 THE PETITION 2 3 Petitioner, who is male, alleges that on October 2, 2019, when he “was housed in the 4 Lancaster state prison mental health ad. seg . . . and waiting to go to group for the day,” he 5 was sexually assaulted by (Correctional Officer) c/o Winfeld. (Petition at 5.) According to 6 Plaintiff, Officer Winfeld 7 8 came to my cell door and asked if I was going to group and I told him 9 yes I was going to group. And at this time he says ok strip down and I 10 said a couple of things to him about this since he is the first officer to 11 do this. So I said ok, so I give this officer my shoes, shirt, pants and 12 then he says ok give me the boxers also so I can see that sexy white ass 13 and that is when I looked at this officer and tell him to get his 14 f[illegible]ing queer ass away from my door and I grabbed my clothes 15 and refused to go to group for this day. 16 17 (Id. at 6.) 18 19 Petitioner alleges he filed an inmate appeal (CDCR From 602) and a Health Care 20 Services Request Form (CDCR 7362) asking to speak to someone about “being sexually 21 harassed by a staff member.” (Id.; and see Attachment to Petition at PAGEID 29, 92-96.)1 22 Petitioner attaches to the Petition a Memorandum of Decision dated April 16, 2020 denying 23 a petition for habeas corpus that Petitioner filed with the Los Angeles County Superior Court 24 (In re Daniel Harper, Case No. BH012890) for failure to exhaust administrative remedies. 25 (Petition, Ex. 1 at PAGEID 13.) Petitioner provides no information about his underlying 26 conviction or sentence and does not identify any remedy that he seeks. 27 1 For ease of reference, the Court uses the CM ECF page identifiers when referencing the attachments to the 28 Petition. 1 For the reasons discussed below, the Petition must be summarily dismissed because 2 Petitioner’s claims are not cognizable under Section 2254. 3 4 DISCUSSION 5 6 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 7 Courts, 28 U.S.C. foll. § 2254 (“Habeas Rules”), requires a district court to dismiss a 8 petition, without ordering a responsive pleading, when “it plainly appears from the petition 9 and any attached exhibits that the petitioner is not entitled to relief.” In this case, pursuant to 10 Habeas Rule 4, summary dismissal of the Petition without prejudice is required. See Bostic 11 v. Carlson,

, 1269–70 (9th Cir. 1989) (affirming district court’s dismissal of a 12 Section 2241 petition under Habeas Rules 1(b) and 4). 13 14 A habeas corpus petition under

is the proper vehicle for a state 15 prisoner’s challenge to validity or length of his sentence, but challenges to a prisoner’s 16 conditions of confinement must be brought through a civil rights action. Wilkinson v. 17 Dotson,

(2005); and see Nettles v. Grounds,

(9th Cir. 18 2016) (adopting “the Supreme Court’s strong suggestion that a § 1983 action is the exclusive 19 vehicle for claims that are not within the core of habeas.”). A civil rights action is the 20 “proper remedy” for a prisoner “who is making a constitutional challenge to the conditions 21 of his prison life, but not to the fact or length of his custody.” Preiser v. Rodriguez,

1827, 1841 (1973). “[C]onstitutional claims that merely challenge the conditions of a 23 prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall outside 24 of that core [of habeas relief] and may be brought pursuant to § 1983 in the first instance.” 25 Nelson v. Campbell,

(2004). In Dotson, the Supreme Court held that a 26 claim that would not necessarily result in a speedier or immediate release “does not lie at the 27 core of habeas corpus.” Dotson,

(Scalia, J., concurring). 28 1 I. The Petition Fails to State a Habeas Claim. 2 3 Petitioner challenges alleged sexual harassment by a correctional officer at Lancaster 4 State Prison. (Petition at 2.) He alleges that he was subjected to sexual harassment when 5 Correctional Officer Winfeld told him to take off his boxers before going to group so that, 6 allegedly, the officer could see Petitioner’s “sexy white ass.” (Petition at 6.) Petitioner does 7 not challenge his underlying conviction, the execution of his sentence, or the fact or duration 8 of his custody or incarceration. Instead, Petitioner’s sole claim challenges the legality of 9 actions by a correctional officer that have no bearing on the fact or duration of his 10 confinement. Because success on this claim would not necessarily spell Petitioner’s speedier 11 release from custody, it falls outside the core of habeas relief and may be brought only as a 12 civil rights challenge to the conditions of Plaintiff’s confinement under

. 13 14 II. The Court Declines to Sua Sponte Convert the Petition into a Civil Rights Action. 15 16 The Court may construe a flawed habeas petition as a civil rights action. See 17 Wilwording v. Swenson,

(1971), overruled on other grounds by Woodford 18 v. Ngo,

(2006). Converting the Petition to a Section 1983 complaint would be 19 improper in this instance, however, because: (1) the Petition was not accompanied by the 20 $400 filing fee; (2) the Petition was not accompanied by an application to proceed in forma 21 pauperis supported by all of the requisite documentation and an authorization to have the 22 $400 filing fee deducted from Petitioner’s trust account pursuant to

(b)2; 23 and (3) Petitioner has not identified the capacity in which Respondents CDCR and/or Officer 24 Winfeld would be sued, if at all, for purposes of a civil rights claim, a critical issue for 25 analyzing immunity issues. 26 27 2 Because Petitioner is a prisoner,

(b) requires him to pay “the full amount of a filing fee,” 28 although he may do so through monthly payments rather than prepaying the entire amount. 1 Dismissal of this action at the pleading stage would not end Petitioner’s obligation to 2 pay that $400 filing fee. In addition, the Court would be obligated to screen the converted 3 Petition pursuant to the screening provisions of the Prisoner Litigation Reform Act of 1995. 4 See 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). Finally, if the converted Petition 5 ultimately were dismissed for failure to state a claim upon which relief may be granted, that 6 dismissal could count as a “strike” against the Petitioner for purposes of

1915(g), which provides that a prisoner who has three “strikes” — i.e., prior actions 8 dismissed on the grounds that they are frivolous, malicious, or fail to state a claim upon 9 which relief may be granted — may not bring an action or appeal without prepayment of the 10 full filing fee unless “the prisoner is under imminent danger of serous physical injury.” 11 Thus, the Court finds it is appropriate to dismiss the Petition, without prejudice, so that 12 Petitioner may determine whether or not he wishes to raise the claims in a properly- 13 submitted civil rights complaint. 14 15 Accordingly, for the foregoing reasons, it is ORDERED that the Petition shall be 16 DISMISSED WITHOUT PREJUDICE. 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 1 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 2 || United States District Courts, the Court has considered whether a certificate of appealability 3 || is warranted in this case. See

(c) (2); Slack v. McDaniel,

, 4 || 484-85 (2000). The Court concludes that a certificate of appealability is unwarranted and, 5 || thus, a certificate of appealability is DENIED. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 || DATED: June 5, 2020 □□□ 10 oi US G. BERNAL |

UNITEDSSTATES DISTRICT JUDGE 13 14 15 16 Presented by: 17 ft: Quen / i Lens? 18 KAREN L. STEVENSON 19 || UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28