Nguon v. Virga

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/18/2010 ORDERING that ptnr's 2 request to proceed IFP is GRANTED; and this action is DISMISSED. CASE CLOSED. (Yin, K)

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(HC) Nguon v. Virga Doc. 5 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. TIM V. VIRGA, Respondent. / Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. In his petition, he challenges the filing fee imposed by the state courts on prisoners wishing to file lawsuits alleging state tort law claims. A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA HUNG DUONG NGUON, Petitioner, No. CIV S-10-2707 EFB P ORDER Dockets.Justia.com 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 26 411 U.S. 475, 484 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing 2254 Cases. Because petitioner's claim does not challenge his custody, it is not appropriate for a 2254 action. Therefore, this case is dismissed. See Rule 4, Rules Governing 2254 Cases. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's request to proceed in forma pauperis is granted; and 2. This action is dismissed. Dated: October 18, 2010. 2

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