Portillo v. Davis et al

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/06/13 denying 5 Motion to Proceed IFP. This action is dismissed without prejudice to filing a civil rights action pursuant to 42 USC 1983. The court declines to issue a certificate of appealability. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD PORTILLO,

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No. 2:13-cv-1976-EFB P

Petitioner,

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v.

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R. DAVIS, et al.,

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ORDER

Respondents.

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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254.1 He has paid the filing fee. His request for leave to proceed

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in forma pauperis is therefore denied as moot.
Petitioner alleges that prison officials recently notified him that he will be considered for

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transfer to an out of state institution or to another institution within California, as part of the effort

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to reduce overcrowding in California’s prisons. Petitioner seeks to prevent any transfer from

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occurring because he is content with both his housing assignment and his work assignment. He

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also claims that prison officials failed to properly notify him of his right to consult with an

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attorney prior to any classification committee meeting regarding a transfer. See ECF Nos. 1, 6.

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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 28 U.S.C. § 636; see also E.D.
Cal. Local Rules, Appx. A, at (k)(4).
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The court has reviewed the petition as required by Rule 4 of the Rules Governing Section

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2254 Proceedings, and finds that it must be summarily dismissed. See Rule 4, Rules Governing

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§ 2254 Cases (requiring summary dismissal of habeas petition if, upon initial review by a judge, it

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plainly appears “that the petitioner is not entitled to relief in the district court”).

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In federal court, there are two main avenues to relief on complaints related to one’s

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imprisonment – a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and a civil rights

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complaint pursuant to 42 U.S.C. § 1983. Challenges to the validity of one’s confinement or the

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duration of one’s confinement are properly brought in a habeas action, whereas requests for relief

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turning on the circumstances of one’s confinement are properly brought in a § 1983 action.

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Muhammad v. Close, 540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500

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(1973)); see also 28 U.S.C. § 2254(a) (“[A] district court shall entertain an application for a writ

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of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only

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on the ground that he is in custody in violation of the Constitution or laws or treaties of the

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United States.”); Advisory Committee Notes to Rule 1 of the Rules Governing § 2254 Cases.

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Here, petitioner’s claim does not sound in habeas because it does not concern the validity or

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duration of his confinement.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application for leave to proceed in forma pauperis (ECF No. 5) is denied

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as moot;
2. This action is dismissed without prejudice to filing a civil rights action pursuant to 42
U.S.C. § 1983; and
3. The court declines to issue a certificate of appealability.
Dated: November 6, 2013.

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