Silas v. Chappell

Filing 4

ORDER OF DISMISSAL and granting 3 MOTION for Leave to Proceed in forma pauperis. Signed by Judge Charles R. Breyer on 1/24/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 1/28/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CHARLES SILAS, K83618,
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Petitioner(s),
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vs.
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WARDEN CHAPPELL,
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Respondent(s).
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No. C 13-0082 CRB (PR)
ORDER OF DISMISSAL
(Docket # 3)

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Petitioner, a prisoner at San Quentin State Prison, has filed a pro se

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petition for a writ of habeas corpus alleging inadequate medical care. He also

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seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915.

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Based solely on his affidavit of poverty, petitioner's request to proceed in

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forma pauperis (docket # 3) is GRANTED. But the petition for a writ of habeas

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corpus is DISMISSED without prejudice to filing a civil rights complaint under

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42 U.S.C. § 1983.

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Although the Supreme Court has not addressed whether a challenge to a

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condition of confinement may be brought under habeas, see Bell v. Wolfish, 441

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U.S. 520, 526 n.6 (1979), the Ninth Circuit has held that habeas jurisdiction is

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absent, and a § 1983 action proper, where, as here, a successful challenge to a

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prison condition will not necessarily shorten the prisoner’s sentence. Ramirez v.

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Galaza, 334 F.3d 850, 859 (9th Cir. 2003). In addition, the preferred practice in

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the Ninth Circuit has been that challenges to conditions of confinement be

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brought in a civil rights complaint. See Badea v. Cox, 931 F.2d 573, 574 (9th

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Cir. 1991) (civil rights action is proper method of challenging conditions of

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confinement); Crawford v. Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir. 1979)

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(affirming dismissal of habeas petition on basis that challenges to terms and

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conditions of confinement must be brought in civil rights complaint).

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The clerk shall send petitioner a prisoner civil rights complaint form, enter
judgment in accordance with this order, terminate all pending motions as moot,

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and close the file.

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SO ORDERED.

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DATED: Jan. 24, 2013

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CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.13\Silas, C.13-0082.dismissal.wpd

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