Cook v. Kirkland et al
Filing
5
ORDER OF DISMISSIAL and finding as moot 2 Motion for Leave to Proceed in forma pauperis by Judge Charles R. Breyer (be, COURT STAFF) (Filed on 11/3/2005)
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Cook v. Kirkland et al
Doc. 5
Case 3:05-cv-04321-CRB
Document 5
Filed 11/03/2005
Page 1 of 2
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 27 28 Petitioner, a state prisoner at Pelican Bay State Prison ("PBSP"), has filed a pro se petition for a writ of habeas corpus challenging his indefinite placement in administrative segregation on the basis of being a prison gang affiliate. The petition for a writ of habeas corpus is DISMISSED without prejudice to filing a civil rights complaint under 42 U.S.C. § 1983. Although the Supreme Court has not addressed whether a challenge to a condition of confinement may be brought under habeas, see Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979), the Ninth Circuit has held that habeas jurisdiction is absent, and a § 1983 action proper, where, as here, a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence. Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). In addition, the preferred practice in the Ninth Circuit has been IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
TIMOTHY J. COOK, Petitioner, vs. RICHARD KIRKLAND, Warden, et al., Respondent(s).
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No. C 05-4321 CRB (PR) ORDER OF DISMISSAL (Doc # 2)
Dockets.Justia.com
Case 3:05-cv-04321-CRB
Document 5
Filed 11/03/2005
Page 2 of 2
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that challenges to conditions of confinement be brought in a civil rights complaint. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil rights action is proper method of challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and conditions of confinement must be brought in civil rights complaint). The clerk shall enter judgment in accordance with this order, terminate all pending motions (see, e.g., doc # 2) as moot, and close the file. No fee is due. SO ORDERED. DATED: November 02, 2005 CHARLES R. BREYER United States District Judge
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