1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LUIS GARCIA, Case No. CV 19-9382 JLS (PVC) 12 Petitioner, ORDER ACCEPTING FINDINGS, 13 v. CONCLUSIONS AND RECOMMENDATIONS OF UNITED 14 R. JOHNSON, Warden, et al., STATES MAGISTRATE JUDGE 15 Respondents. 16 17 Pursuant to

, the Court has reviewed the Petition, all the records 18 and files herein, the Report and Recommendation of the United States Magistrate Judge, 19 and Petitioner’s Objections. After having made a de novo determination of the portions of 20 the Report and Recommendation to which Objections were directed, the Court concurs 21 with and accepts the findings and conclusions of the Magistrate Judge. 22 23 In his Objections, Petitioner argues at length about the purported merits of his due 24 process claim. (Obj. at 4-7). However, the Petition is denied because it fails to state a 25 cognizable habeas claim. Petitioner further asserts that if his claim is not cognizable in 26 habeas, the Court should construe it as a claim under

. (Id. at 1, 7-8). In 27 making this request, Petitioner does not address the reasons articulated in the Report and 28 Recommendation as to why conversion is inappropriate here. 1 A district court has discretion to construe a habeas petition raising civil rights 2 claims as a § 1983 lawsuit. See Wilwording v. Swenson,

(1971) (per 3 curiam), superseded by statute on other grounds as recognized in Woodford v. Ngo, 548

, 84 (2006). However, the court is not required to do so, even upon the request of 5 the petitioner, and here conversion would be improper. See Cheatom v. Grounds, 2011

, at *1 (N.D. Cal. Aug. 11, 2011) (“Although the court may construe a 7 habeas petition as a civil rights action, it is not required to do so.”) (emphasis in original). 8 Generally, a court may recharacterize a habeas petition as a civil rights complaint only if 9 the petition is amenable to conversion to a § 1983 action “on its face,” that is, if the 10 petition names the correct defendants and seeks the proper relief. See Nettles v. Grounds, 11

(9th Cir. 2016) (en banc). Here, the Petition would require substantial 12 amendment to recast its sole ground for relief as a civil rights claim, to identify the 13 defendant or defendants responsible for the alleged constitutional violation, and to 14 describe their actions. 15 16 Furthermore, if the Petition were converted to a § 1983 complaint, Petitioner would 17 be obligated to pay the $350.00 filing fee applying to prisoner civil rights actions, either 18 immediately in full or through withdrawals from his prison trust account as funds become 19 available over time. See

(b). Petitioner’s obligation to pay the $350.00 20 filing fee would not end even if his civil rights action were dismissed at the pleading stage 21 and would continue until the full amount is paid, regardless of when or how the action is 22 resolved. The Court would also be obligated to screen the converted petition pursuant to 23 the PLRA’s screening provisions. See 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). 24 The allegations of the Petition, as currently pled, do not state a cognizable § 1983 claim 25 against the named Respondents. If the converted petition ultimately were dismissed for 26 failure to state a claim upon which relief may be granted, that dismissal could count as a 27 “strike” against Petitioner for purposes of

(g). Under that provision, a 28 prisoner who has three “strikes” -- i.e., prior actions dismissed on the grounds that they 1 are frivolous, malicious, or fail to state a claim upon which relief may be granted -- may 2 not bring an action or appeal without prepayment of the full filing fee unless “the prisoner 3 is under imminent danger of serous physical injury.”

4 5 In addition, it would be inappropriate to construe the Petition as arising under 6 § 1983 because: (1) the Petition was not accompanied by the $350.00 filing fee or an 7 application to proceed in forma pauperis so that the filing fee could be paid in increments 8 over time; (2) the Petition was not accompanied by an affidavit regarding Petitioner's 9 financial status and a certified trust account statement covering the past six months as 10 required by

(a); (3) the Petition was not accompanied by an authorization 11 by Petitioner to have the $350.00 filing fee deducted from his trust account pursuant to 28

(b); and (4) Petitioner has not identified the capacity in which Respondents 13 would be sued for purposes of a civil rights claim, a critical issue for determining whether 14 Respondents would be immune from suit under the Eleventh Amendment. 15 16 Petitioner, may, of course, correct at least some of these deficiencies by filing a 17 civil rights lawsuit accompanied by the proper documentation. The Court believes it is 18 appropriate to dismiss the Petition, without prejudice, so that Petitioner may carefully 19 consider whether or not he wishes to raise his due process claim through a properly- 20 submitted civil complaint. Accordingly, all of Petitioner’s Objections are OVERRULED 21 and the request that this action be converted to a suit under § 1983 is DENIED, without 22 prejudice to re-filing Petitioner’s claim in a civil rights action. 23 24 IT IS ORDERED that the Petition is denied and Judgment shall be entered 25 dismissing this action without prejudice. 26 \\ 27 \\ 28 \\ 1 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the 2 || Judgment herein on Petitioner and on counsel for Respondents. 3 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 || Dated: August 12, 2020 Al 7 8 ee JOSEPHINE L. STATON 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28