2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DANIEL HARPER, ) NO. CV 20-5261-JGB (KS) 11 Petitioner, ) “ ORDER: DISMISSING PETITION FOR 13 || CALIFORNIA DEPARTMENT OF ) WRIT OF HABEAS CORPUS WITHOUT 14 || CORRECTIONS AND ) PREJUDICE; DENYING A CERTIFICATE REHABILITATION, et al, ) OF APPEALABILITY I5 Respondents. ) 16 || ——___ 17 18 INTRODUCTION 19 20 On June 12, 2020, Daniel Harper (“Petitioner”), who is currently in California custody 21 || and housed at the California Medical Facility in Vacaville, California, filed a

22 || habeas petition (“Petition”) (Dkt. No. 1) and application to proceed in forma pauperis (Dkt. 23 || No. 3). The Petition asserts that, on October 2, 2019, Lancaster State Prison Correctional 24 || Officer Winfeld sexually harassed Petitioner by ordering Petitioner to strip naked so that he 25 || could see Petitioner’s “sexy white ass.” (Petition at 5-6.) Petitioner previously filed an 26 || identical petition, which the Court dismissed for failure to state a cognizable claim for habeas 27 || relief. See Daniel Harper v. California Department of Corrections and Rehabilitation et al, 28

1 || CV 20-4746-JGB (KS) (June 5, 2020). For the same reasons, which are discussed below, the 2 || instant Petition is also summarily dismissed for failure to state a cognizable claim under 3 || Section 2254. 4 5 DISCUSSION 6 7 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 8 || 28 U.S.C. foll. § 2254 (“Habeas Rules”), requires a district court to dismiss a petition, without 9 || ordering a responsive pleading, when “it plainly appears from the petition and any attached 10 || exhibits that the petitioner is not entitled to relief.” In this case, pursuant to Habeas Rule 4, 11 || summary dismissal of the Petition without prejudice is required. See Bostic v. Carlson, 884 12 || F.2d 1267, 1269-70 (9th Cir. 1989) (affirming district court’s dismissal of a Section 2241 13 || petition under Habeas Rules 1(b) and 4). 14 1s A habeas corpus petition under

is the proper vehicle for a state 16 || prisoner’s challenge to validity or length of his sentence, but challenges to a prisoner’s 17 || conditions of confinement must be brought through a civil rights action. Wilkinson v. Dotson, 18 |}

(2005); and see Nettles v. Grounds,

(9th Cir. 2016) 19 || (adopting “the Supreme Court’s strong suggestion that a § 1983 action is the exclusive vehicle 20 || for claims that are not within the core of habeas.”). A civil rights action is the “proper remedy” 21 || for a prisoner “who is making a constitutional challenge to the conditions of his prison life, 22 || but not to the fact or length of his custody.” Preiser v. Rodriguez,

(1973). 23 || “[C]onstitutional claims that merely challenge the conditions of a prisoner’s confinement, 24 || whether the inmate seeks monetary or injunctive relief, fall outside of that core [of habeas 25 || relief] and may be brought pursuant to § 1983 in the first instance.” Nelson v. Campbell, 541 26 || U.S. 637, 642 (2004). In Dotson, the Supreme Court held that a claim that would not 27 || necessarily result in a speedier or immediate release “does not lie at the core of habeas corpus.” 28 || Dotson,

(Scalia, J., concurring).

l I. The Petition Fails to State a Habeas Claim.

3 Petitioner challenges alleged sexual harassment by a correctional officer at Lancaster 4 || State Prison. (Petition at 2, 5-6.) Petitioner does not challenge his underlying conviction, the 5 || execution of his sentence, or the fact or duration of his custody or incarceration. Instead, 6 || Petitioner’s sole claim challenges the actions by a correctional officer that have no bearing on 7 || the fact or duration of his confinement. Because success on this claim would not necessarily 8 || spell Petitioner’s speedier release from custody, it falls outside the core of habeas relief and 9 || may be brought only as a civil rights challenge to the conditions of Plaintiff's confinement 10 || under

. 11 12 || Il. The Court Declines to Sua Sponte Convert the Petition into a Civil Rights Action. 13 14 The Court may construe a flawed habeas petition as a civil rights action. See 15 || Wilwording v. Swenson,

(1971), overruled on other grounds by Woodford 16 || v. Ngo,

(2006). Converting the Petition to a Section 1983 complaint would be 17 || improper in this instance, however, because: (1) the Petition was not accompanied by the 18 || $400 filing fee; (2) the Petition was not accompanied by an application to proceed in forma 19 || pauperis supported by all of the requisite documentation and an authorization to have the $400 20 || filing fee deducted from Petitioner’s trust account pursuant to

(b)!; and (3) 21 || Petitioner has not identified how Respondent California Department of Corrections and 22 || Rehabilitation participated in, or could otherwise be found liable for, the alleged misconduct 23 || of Officer Winfeld in a civil rights suit. 24 25 Dismissal of this action at the pleading stage would not end Petitioner’s obligation to 26 || pay that $400 filing fee. In addition, the Court would be obligated to screen the converted 27 _——<— 28 Because Petitioner is a prisoner,

5(b) requires him to pay “the full amount of a filing fee,” although he may do so through monthly payments rather than prepaying the entire amount.

1 || Petition pursuant to the screening provisions of the Prisoner Litigation Reform Act of 1995. 2 || See 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). Finally, if the converted Petition 3 || ultimately were dismissed for failure to state a claim upon which relief may be granted, that 4 || dismissal could count as a “strike” against the Petitioner for purposes of

(g), 5 || which provides that a prisoner who has three “strikes” — i.e., prior actions dismissed on the 6 || grounds that they are frivolous, malicious, or fail to state a claim upon which relief may be 7 || granted — may not bring an action or appeal without prepayment of the full filing fee unless 8 || “the prisoner is under imminent danger of serous physical injury.” Thus, the Court finds it is 9 || appropriate to dismiss the Petition, without prejudice, so that Petitioner may determine 10 || whether or not he wishes to raise the claims in a properly submitted civil rights complaint. To 11 || that end, the Clerk is directed to send Petitioner a copy of the Central District’s form 12 || civil rights complaint with this Order. 13 14 Accordingly, for the foregoing reasons, it is ORDERED that the Petition shall be 15 |} DISMISSED WITHOUT PREJUDICE. 16 || \\ 17 || \\ 18 || \\ 19 |} \\ 20 || \\ 21 |] \\ 22 || \\ 23 || \\ 24 || \\ 25 || \\ 26 || \\ 27 || \\ 28 || \\

l 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 18, 2020 10 [ □□□□ 1 ~ [ }ESUSG. BERNAL UNIWA4D STATES DISTRICT JUDGE 13 Presented by: TS □□ L- Kessnem 16 KAREN L. STEVENSON 17 || UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28