Garcia v. Neotti

Filing 2

ORDER DISMISSING CASE. The Court dismisses this case without prejudice and with leave to amend. If Petitioner wishes to challenge the validity of a state court conviction via a habeas corpus action, he must submit, no later than October 25, 2010: (1) a copy of this Order with the $5.00 fee OR with adequate proof of his inability to pay the fee; AND (2) a First Amended Petition which cures the pleading deficiencies outlined in this Order. If Petitioner wishes to challenge the conditions of h is confinement, he must file a new civil complaint pursuant to 42 U.S.C. § 1983 which will be given a new civil case number. Signed by Judge Larry Alan Burns on 8/20/10 (forms mailed to petitioner)(All non-registered users served via U.S. Mail Service)(kaj)

-POR Garcia v. Neotti

Doc. 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 v. GEORGE NEOTTI, et al., Respondents. P e titio n e r, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas C o rp u s pursuant to 28 U.S.C. § 2254. F A IL U R E TO SATISFY FILING FEE REQUIREMENT P e titio n e r has failed to pay the $5.00 filing fee and has failed to move to proceed in forma p a u p e ris . This Court cannot proceed until Petitioner has either paid the $5.00 filing fee or q u a lif ie d to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. FAILURE TO USE PROPER FORM A d d itio n a lly, a Petition for Writ of Habeas Corpus must be submitted in accordance with th e Local Rules of the United States District Court for the Southern District of California. See R u le 2(c), 28 U.S.C. foll. § 2254. In order to comply with the Local Rules, the petition must be s u b m itte d upon a court-approved form and in accordance with the instructions approved by the C o u rt. Presently, Petitioner has submitted an application for writ of habeas corpus on a nona p p ro v e d form. LENIN GARCIA, Petitioner, ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND Civil No. 10-1695 LAB (POR) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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10cv1695

Dockets.Justia.com

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F A IL U R E TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS U p o n review of the Petition, it also appears to the Court that a Petition for Writ of Habeas C o r p u s brought pursuant to § 2254 is not the proper vehicle for the claims Petitioner presents. C h a lle n g e s to the fact or duration of confinement are brought by petition for a writ of habeas c o rp u s , pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement are brought p u r s u a n t to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 4 8 8 -5 0 0 (1973). When a state prisoner is challenging the very fact or duration of his physical im p r is o n m e n t , and the relief he seeks is a determination that he is entitled to immediate release o r a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Id . at 500. On the other hand, a § 1983 action is a proper remedy for a state prisoner who is m a k in g a constitutional challenge to the conditions of his prison life, but not to the fact or length o f his custody. Id. at 499; McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (1 0 th Cir. 1997). It appears that Petitioner challenges the conditions of his prison life, but not the fact or le n g th of his custody.1 Petitioner's main complaint is that he was found guilty of a rules v io la tio n . Petitioner admits, however, that he did not lose any credits as a result of the violation. (S e e Pet. at 3.) Petitioner's claims are not cognizable on habeas because they do not challenge th e constitutional validity or duration of confinement. See 28 U.S.C. 2254(a); Preiser, 411 U.S. a t 500; Heck v. Humphrey, 512 U.S. 477, 480-85 (1994). "Section 2254 applies only to c o lla te ra l attacks on state court judgments." McGuire v. Blubaum, 376 F. Supp. 284, 285 (D. A riz. 1974). In no way does Petitioner claim his state court conviction violates the Constitution or laws o r treaties of the United States. Rule 4 of the Rules Governing Section 2254 Cases provides for s u m m a ry dismissal of a habeas petition "[i]f it plainly appears from the face of the petition and a n y exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, 2 8 U.S.C. foll. § 2254. Here, it is plain from the petition that Petitioner is not presently entitled to federal habeas relief because he has not alleged that the state court violated his federal rights.
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Petitioner has already filed a § 1983 complaint in this court,10cv1187 BEN (RBB).

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10cv1695

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C O N C L U SIO N F o r all the foregoing reasons, the Court DISMISSES this case without prejudice and with le a v e to amend. If Petitioner wishes to challenge the validity of a state court conviction via a h a b e a s corpus action, he must submit, no later than October 25, 2010: (1) a copy of this Order w ith the $5.00 fee OR with adequate proof of his inability to pay the fee; AND (2) a First A m e n d e d Petition which cures the pleading deficiencies outlined in this Order. If Petitioner w i s h e s to challenge the conditions of his confinement, he must file a new civil complaint p u rs u a n t to 42 U.S.C. § 1983 which will be given a new civil case number. THE CLERK OF C O U R T IS DIRECTED TO MAIL PETITIONER A BLANK MOTION TO PROCEED I N FORMA PAUPERIS FORM, A BLANK FIRST AMENDED PETITION FORM, AND A BLANK CIVIL RIGHTS COMPLAINT FORM PURSUANT TO 42 U.S.C. § 1983 T O G E T H E R WITH A COPY OF THIS ORDER. I T IS SO ORDERED. D A T E D : August 20, 2010

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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10cv1695