Lacey v. Adams
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/2/2011 ORDERING that petitioner's 2 request to proceed IFP is GRANTED; and the clerk to assign a district judge to this case; and RECOMMENDING that petitioner's 1 application for a writ of habeas corpus be dismissed. Assigned and Referred to Judge Morrison C. England, Jr.; Objections due within 21 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BILLY J. LACEY,
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Petitioner,
vs.
DERRAL ADAMS,
Respondent.
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No. CIV S-11-2946 CKD P
ORDER and
/
FINDINGS & RECOMMENDATIONS
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.
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Examination of the request to proceed in forma pauperis reveals petitioner is
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unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is
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granted. 28 U.S.C. § 1915(a).
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Under Rule 4 of the Rules Governing § 2254 Cases, the court must conduct a
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preliminary review of § 2254 habeas petitions and dismiss any petition where it plainly appears
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that petitioner is not entitled to relief in this court. A writ of habeas corpus is available if the
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court finds that petitioner is in custody in violation of federal law. 28 U.S.C. § 2254(a).
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In his petition, petitioner does not allege that he is in custody in violation of
federal law. Rather, he takes issue with his conditions of confinement. If petitioner wishes to
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challenge conditions of confinement, e.g. he is being subjected to cruel and unusual punishment
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in violation of the Eighth Amendment, the correct course of action would be to commence an
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action under 42 U.S.C. § 1983. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003).
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Petitioner is warned, however, that if he commences a § 1983 action, he will be required to pay
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the $350 filing fee, although he will be allowed to pay it in installments.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Petitioner’s request for leave to proceed in forma pauperis (#2) is granted; and
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2. The Clerk of the Court assign a district court judge to this case.
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IT IS HEREBY RECOMMENDED that petitioner’s application for writ of habeas
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corpus be dismissed.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
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one days after being served with these findings and recommendations, petitioner may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Petitioner is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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Dated: December 2, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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lace2946.dis
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