Harrison v. CDCR, et al.,

Filing 7

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 5/7/10 ORDERING that 2 Motion to Proceed IFP is GRANTED; Clerk of the Court is directed to send plaintiff the form for a civil rights action by a prisoner; RECOMMENDING that 1 Petition for Writ of Habeas Corpus be dismissed. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 21 days.(Dillon, M)

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. DIRECTOR OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Respondents. / ORDER AND FINDINGS AND RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CARL F. HARRISON, Petitioner, No. CIV-S-10-0547 FCD KJM P

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. Examination of the request to proceed in forma pauperis reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). An application for writ of habeas corpus filed under 28 U.S.C. § 2254 can only be considered if the habeas petitioner alleges he is in custody in violation of the United States Constitution. Petitioner makes no such allegation in his petition. Rather, he challenges his conditions of confinement, specifically, his ability to access courts under the First Amendment. 1

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Allegations of unconstitutional conditions of confinement generally must be brought in an action filed under 42 U.S.C. § 1983. For these reasons, petitioner's habeas petition should be dismissed. Petitioner may bring a different action under § 1983 to challenge the matters asserted in his petition. He is advised that he will be required to pay the $350 filing fee, for a § 1983 action, in installments at least. In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner is granted leave to proceed in forma pauperis; and 2. The Clerk of the Court is directed to send plaintiff the form for a civil rights action by a prisoner. IT IS HEREBY RECOMMENDED that petitioner's application for writ of habeas corpus be dismissed. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twentyone days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: May 7, 2010.

1 harr0547.114(3.8.10)

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