1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TONY XAVIER HOUSTON, Case No. 21-cv-05044-JST

8 Petitioner, ORDER OF DISMISSAL; DENYING 9 v. CERTIFICATE OF APPEALABILITY

10 NORTH KERN STATE PRISON, Respondent. 11

12 13 Petitioner, a state prisoner incarcerated at North Kern State Prison, filed this petition for a 14 writ of habeas corpus. For the reasons set forth below, the Court DISMISSES this action for lack 15 of federal habeas jurisdiction. 16 DISCUSSION 17 Petitioner pled no contest to grand-theft and is serving a two-year sentence. ECF No. 1 at 18 2. The petition challenges his conditions of confinement at North Kern State Prison, alleging that 19 guards did not follow proper procedures and were unprofessional; he was discriminated against 20 and ostracized; he was forced to exit his cell during his quarantine to get his meal; he is always the 21 last person to shower; he is only given 5-6 minutes to consume his meal; he was assaulted on May 22 14, 2021; his sentence has been lengthened due to discrimination and harassment from 23 correctional officers; he was called a fool and yanked up by the arm; he was not asked if he 24 needed medical attention; his neck was injured and his ears and head kicked; he was unable to file 25 a grievance for a week; during his transfer to North Kern State Prison, the chain around his 26 stomach was too tight and the officer refused to loosen it, he was the last to exit the bus, and his 27 ankle cuffs were too loose making it hard for him to walk; and his rules violation report is 1 Plaintiff’s claims regarding the conditions of his confinement may not be raised in a 2 petition for a writ of habeas corpus and must be raised in a civil rights action. “‘Federal law opens 3 two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 4

, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as 5 amended,

. Challenges to the validity of any confinement or to particulars 6 affecting its duration are the province of habeas corpus . . .’” Hill v. McDonough,

, 7 579 (2006) (quoting Muhammad v. Close,

(2004)). “An inmate’s challenge to 8 the circumstances of his confinement, however, may be brought under § 1983.” Id. Where a 9 successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence, a 10 civil rights action under

is proper and habeas jurisdiction is absent. See Ramirez 11 v. Galaza,

(9th Cir. 2003). In addition, the preferred practice in the Ninth 12 Circuit has been that challenges to conditions of confinement be brought in a civil rights 13 complaint. See Badea v. Cox,

(9th Cir. 1991) (civil rights action proper method 14 of challenging conditions of confinement); Crawford v. Bell,

, 891–92 & n.1 (9th Cir. 15 1979) (affirming dismissal of habeas petition because challenges to terms and conditions of 16 confinement must be brought as civil rights complaint). 17 Petitioner’s complaints regarding his conditions of confinement do not challenge either his 18 no-contest plea or the length of his sentence. Success on these claims would not result in his 19 release from prison or shorten his stay in prison. Accordingly, Petitioner should bring these 20 claims in a civil rights action instead, if he believes the alleged conditions of his confinement 21 violate the federal Constitution or federal law.1 22 1 A district court may construe a habeas petition by a prisoner attacking the conditions of his 23 confinement as pleading civil rights claims under

. Wilwording v. Swenson,

(1971), superseded by statute on other grounds, Prison Litigation Reform Act of 24 1995,

Stat. 1321-71, as amended, 42 U.S.C. § 1997e et seq., as recognized in Woodford v. Ngo,

(2006). However, the Court declines to do so 25 here. The difficulty with construing a habeas petition as a civil rights complaint is that the two forms used by most prisoners request different information and much of the information necessary 26 for a civil rights complaint is not included in the habeas petition filed here. Examples of the potential problems created by using the habeas petition form rather than the civil rights complaint 27 form include the potential omission of intended defendants, potential failure to link each defendant 1 The federal rules governing habeas cases brought by state prisoners require a district court 2 || that issues an order denying a habeas petition to either grant or deny therein a certificate of 3 appealability. See Rules Governing § 2254 Case, Rule 11(a). 4 A judge shall grant a certificate of appealability “only if the applicant has made a 5 substantial showing of the denial of a constitutional right,”

(c)(2), and the 6 || certificate must indicate which issues satisfy this standard.

§ 2253(c)(3). “Where a district 7 court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) g || is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district 9 || court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

|| 473, 484 (2000). 11 Here, Petitioner has not made such a showing and, accordingly, a certificate of a 12 appealability will be denied on this claim.

CONCLUSION

For the reasons stated above, the Court hereby DISMISSES this petition for lack of federal 6 Pp 15 habeas jurisdiction without prejudice to filing a civil rights action under

. The Q 16 || Clerk shall include two copies of the court’s civil rights complaint form with a copy of this order

17 || to Petitioner.

18 IT IS SO ORDERED.

19 Dated: October 22, 2021 20 JON S. TIGAR 2] ited States District Judge 22 23 94 || claims; (2) the Court may be able to make credibility determinations based on the written submissions of the parties in a habeas action; (3) state court (rather than administrative) remedies 25 must be exhausted for the claims in a habeas action; (4) the proper respondent in a habeas action is the warden in charge of the prison, but he or she might not be able to provide the desired relief 26 || when the prisoner is complaining about a condition of confinement; and (5) damages cannot be awarded in a habeas action. For all these reasons, it is not in the interest of judicial economy to 07 allow prisoners to file civil rights actions on habeas forms because virtually every case, including this one, will be defective at the outset and require additional court resources to deal with the 2g || problems created by the different filing fees and the absence of information pertinent to civil rights claims on a habeas form.