1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KOBE MAYNARD, Case No. 20-cv-04021-WHO (PR)

Petitioner, 8 ORDER OF DISMISSAL v. 9

10 A. CORTINA, Dkt. No. 7 Respondent. 11

12 13 This federal action was filed as a petition for writ of habeas corpus, that is, as a 14 challenge to the lawfulness or duration of petitioner Kobe Maynard’s incarceration. A 15 review of the petition, however, shows that Maynard sets forth claims regarding the 16 conditions of confinement — specifically claims of First Amendment retaliation — rather 17 than claims challenging the lawfulness or duration of his confinement. Therefore, if 18 petitioner prevails here it will not affect the length of his incarceration. This means that 19 his claim is not the proper subject of a habeas action but must be brought as a civil rights 20 action under

. See Badea v. Cox,

(9th Cir. 1991) 21 (habeas corpus action proper mechanism for challenging “legality or duration” of 22 confinement; civil rights action proper method for challenging conditions of confinement); 23 Crawford v. Bell,

, 891-892 & n.1 (9th Cir. 1979) (affirming dismissal of 24 habeas petition on basis that challenges to terms and conditions of confinement must be 25 brought in civil rights complaint). 26 In an appropriate case, a habeas petition may be construed as a section 1983 27 complaint. Wilwording v. Swenson,

(1971). A court may construe a 1 ||} because since the time when the Wilwording case was decided, there have been significant 2 || changes in the law. For instance, the filing fee for a habeas petition is five dollars; for civil 3 || rights cases, however, the fee is now $400 ($350 if pauper status is granted) and under the 4 || Prisoner Litigation Reform Act the prisoner is required to pay it, even if granted in forma 5 || pauperis status, by way of deductions from income to the prisoner’s trust account. See 28 6 || U.S.C. § 1915(b). A prisoner who might be willing to file a habeas petition for which he 7 || or she would not have to pay a filing fee might feel otherwise about a civil rights 8 || complaint for which the $400 fee would be deducted from income in his or her prisoner 9 account. Also, a civil rights complaint which is dismissed as malicious, frivolous, or for 10 || failure to state a claim would count as a “strike” under

(g), which is not 11 true for habeas cases. 2 In view of these potential pitfalls for Maynard if I were to construe the petition as a 5 13 || civil rights complaint, the case is DISMISSED without prejudice to Maynard filing a civil S 14 || rights action if he wishes to do so in light of the above. 3 15 Maynard’s motion to proceed in forma pauperis is GRANTED. (Dkt. No. 7.) The a 16 || Clerk shall terminate all pending motions, enter judgment in favor of respondent, and close

17 || the file. 18 IT IS SO ORDERED. 19 || Dated: July 24, 2020 | ( 20 . LLIAM H. ORRICK 21 United States District Judge 22 23 24 25 26 27 28