Tatum v. Baca et al

Filing 3

ORDER denying as moot 1 motion to proceed IFP and dismissing case. Clerk shall enter judgment accordingly. Signed by Judge Larry R. Hicks on 2/3/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEWAYNE TATUM,

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Petitioner,
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vs.
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ISIDRO BACA, et al.,
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Respondents.
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____________________________________/

3:13-cv-00640-LRH-WGC
ORDER

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
Petitioner has been released from the custody of the Nevada Department of Corrections.
Petitioner has filed a motion to proceed in forma pauperis. (ECF No. 1). Because the Court

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dismisses this action for failure to state a cognizable habeas corpus claim, the motion to proceed in

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forma pauperis is denied as moot.

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Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review

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of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears

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from the face of the petition . . . that the petitioner is not entitled to relief in the district court." Rule

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4 of the Rules Governing 2254 Cases; see also, Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

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A federal court may only grant a petition for writ of habeas corpus if the petitioner can show

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that “he is in custody in violation of the Constitution . . . .” 28 U.S.C. § 2254(a). Federal habeas

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corpus law permits prisoners to challenge the validity of convictions under which they are “in

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custody.” See 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923 (1989) (per

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curiam). A habeas petitioner is not “in custody” under a conviction after the sentence imposed for it

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has fully expired. Petitioner is no longer in the custody of the Nevada Department of Corrections as

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his sentence has expired. Petitioner’s allegations appear to concern a due process claim stemming

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from the adjudication of a prison disciplinary hearing. Plaintiff seeks monetary relief. Petitioner’s

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claims are not appropriate for habeas corpus relief. Challenges to the conditions of confinement are

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more appropriately raised in civil rights action filed pursuant to 42 U.S.C. § 1983. See Badea v.

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Cox, 931 F.2d 573, 574 (9th Cir. 1991); Crawford v. Bell, 599 F.2d at 891-92 (9th Cir. 1979).

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IT IS THEREFORE ORDERED that petitioner’s motion to proceed in forma pauperis
(ECF No. 1) is DENIED AS MOOT.

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IT IS FURTHER ORDERED that the petition is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly.

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Dated this 3rd day of February, 2014.

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_______________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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