1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

DANIEL G. JESTER,

7 Case No. 21-cv-07390-EMC Plaintiff, 8 v. ORDER OF DISMISSAL 9 D.O.J., et al., Docket Nos. 14, 18 10 Defendants. 11

12 13 14 15 Daniel G. Jester, a prisoner currently incarcerated at San Quentin State Prison (“San 16 Quentin”), filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See 17 Docket No. 1. The Court dismissed Mr. Jester’s petition with leave to amend, noting that it was 18 unclear what Mr. Jester complained of, what relief he sought, and whether his action should 19 proceed in habeas or in civil rights. See generally, Docket No. 13. 20 Mr. Jester subsequently filed a first amended petition and a second amended petition. See 21 Docket Nos. 14, 18. Both documents complain of overcrowding at San Quentin, and seek 22 injunctive relief related to that overcrowding. See id. 23 Habeas jurisdiction is lacking for the claims asserted by Mr. Jester. In Nettles v. Grounds, 24 830 F.3d 922, 934-35 (9th Cir. 2016), cert. denied, 137 S. Ct. 645 (2017), the Ninth Circuit held 25 that a prisoner’s claim which, if successful, will not necessarily lead to immediate or speedier 26 release from custody falls outside the “core of habeas corpus” and must be pursued (if at all) in a 27 civil rights action under 42 U.S.C. § 1983, rather than in a habeas action. Nettles, 830 F.3d at 927- 1 or speedier release from custody and therefore falls outside the core of habeas corpus. Under 2 Nettles, Mr. Jester’s only potential recourse in federal court is to file a § 1983 complaint because 3 his claims fall outside the core of habeas corpus. 4 In an appropriate case, a habeas petition may be construed as a civil rights complaint under 5 42 U.S.C. § 1983. Wilwording v. Swenson, 404 U.S. 249, 251 (1971); see Nettles, 830 F.3d at 6 935-36. Although a district court may construe a habeas petition as a civil rights complaint, the 7 district court is not required to do so. 8 Since Wilwording was decided, there have been significant changes in the law. For 9 example, the filing fee for a habeas petition is $5; for civil rights cases, the fee is now $402 (with 10 $52 of that fee reduced if the prisoner is allowed to proceed in forma pauperis). A prisoner is now 11 required to pay the fee, even if granted in forma pauperis status, by way of deductions from 12 income to the prisoner’s trust account. See 28 U.S.C. § 1915(b). A prisoner who might be willing 13 to file a habeas petition for which he would not have to pay a filing fee, or would have to pay a 14 relatively minimal filing fee, might feel otherwise about a civil rights complaint for which the 15 $350 fee would be deducted from income to his prisoner trust account. Also, a civil rights 16 complaint dismissed as malicious, frivolous, or for failure to state a claim counts as a “strike” 17 under 28 U.S.C. § 1915(g), which is not true for habeas cases. The Court is thus reluctant to 18 assume Mr. Jester would want to convert this action into a civil rights action. Further, Mr. Jester’s 19 petition is not amenable to conversion because it does not name a proper defendant; Mr. Jester 20 sues both San Quentin and obviously unrelated federal officials, but does not name an individual 21 with authority over San Quentin’s housing arrangements. See, e.g., Docket No. 18 at 1; see also 22 Nettles, 830 F.3d at 936 (in order to be converted, petition must be “‘amenable to conversion on 23 its face, meaning that it names the correct defendants and seeks the correct relief.’”) (citation 24 omitted). 25 /// 26 /// 27 /// 1 For the foregoing reasons, this habeas action is DISMISSED. The dismissal is without 2 prejudice to Mr. Jester filing a new civil rights action asserting his overcrowding claim. 3 4 IT IS SO ORDERED. 5 6 Dated: April 14, 2023 7 8 ______________________________________

EDWARD M. CHEN

9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27