Bell v. Harringon, et al

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/11/10 ORDERING that 2 Motion to Proceed IFP is GRANTED; The petition is DISMISSED with leave to amend within 30 days. Clerk of the Court is directed to send to petitioner a copy each of the forms used in this court for the filing of an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and for the filing of a civil complaint pursuant to 42 U.S.C. § 1983.(Dillon, M)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. KELLY HARRINGTON, Respondent. / Petitioner is state prisoner proceeding pro se seeking a writ of habeas corpus. See 28 U.S.C. 2254. He seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. The court has reviewed the petition and, for the reasons explained below, finds that in order to proceed petitioner must file an amended petition or a civil rights complaint pursuant to 42 U.S.C. 1983. See Rule 4, Rules Governing Section 2254 Cases (requiring summary dismissal of habeas petition if, upon initial review by a judge, it plainly appears "that the petitioner is not entitled to relief in the district court"). As a general rule, a challenge in federal court to the fact of conviction or the length of confinement must be raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA HORACE ANDREW BELL, Petitioner, No. CIV S-09-2426 JAM EFB P ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 See Preiser v. Rodriguez, 411 U.S. 475 (1973). A civil rights action, on the other hand, is appropriate for challenges to the conditions of an inmate's confinement. Id. at 499. In his petition, petitioner raises claims regarding his conditions of confinement. Specifically, he alleges that he has been denied a job in his prison's dining hall on the basis of his disability. Dckt. No. 1 at 4. He does not challenge the fact of his conviction or the length of his confinement and thus does not state a proper claim for relief under 28 U.S.C. 2254. Therefore, the petition must be dismissed. Petitioner will be given leave to amend. Accordingly, it is hereby ORDERED that: 1. Petitioner's request for leave to proceed in forma pauperis is granted. 2. The petition be dismissed with leave to amend. 3. Within 30 days, petitioner may file an amended petition seeking relief from the fact or duration of his confinement, or instead, a civil rights complaint pursuant to 42 U.S.C. 1983. Failure to comply will result in a recommendation that this action being dismissed. 4. The Clerk of the Court be directed to send to petitioner a copy each of the forms used in this court for the filing of an application for a writ of habeas corpus pursuant to 28 U.S.C. 2254 and for the filing of a civil complaint pursuant to 42 U.S.C. 1983. Dated: August 11, 2010. 2

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