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FRELIMO v. SIMONSON

United States District Court, N.D. California


January 21, 2004.

OBA LEE FRELIMO, Petitioner
v.
A. SIMONSON, et al., Respondents

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL

Petitioner is a California prisoner currently incarcerated at Pelican Bay State Prison ("PBSP") who filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254.

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76(1977)).

  In this petition, petitioner challenges the judgment against him from a small claims action filed in state court by a PBSP guard. The guard successfully sued petitioner for monetary damages for "gassing" him. Petitioner claims that he was deprived of his Page 2 constitutional rights in the small claims action. However, the judgment from the small claims action does not relate to the fact or duration of his custody. As a consequence, petitioner's challenge to that judgment does not fall within the scope § 2254 habeas review. Cf. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (holding that challenges to conditions of confinement should not be brought in a habeas petition because they do not challenge the fact or duration of the inmate's custody). Moreover, this Court does not have jurisdiction to hear appeals from the state small claims court. Accordingly, the petition is DISMISSED for failure to state a cognizable claim for relief.

  Petitioner's application to proceed in forma pauperis is GRANTED.

  This order terminates docket number 3.

  The clerk shall close the file and terminate all pending motions.

  IT IS SO ORDERED.

  JUDGMENT IN A CIVIL CASE

  [] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  [X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED the petition is DISMISSED for failure to state a cognizable claim for relief.

20040121

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