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GUIZAR v. SCRIBNER

United States District Court, N.D. California


May 5, 2004.

FERNANDO GUIZAR, Petitioner,
v.
A.K. SCRIBNER, Respondent

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

ORDER OF DISMISSAL

Fernando Guizar ("petitioner"), currently incarcerated at the California State Prison, Corcoran, California, filed this pro se petition for a writ of habeas corpus pursuant to 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).

  In the instant petition, petitioner alleges that while he was housed at Salinas Valley State Prison ("SVSP") he was placed in Administrative Segregation in the Secured Housing Unit after being found to be affiliated with a prison gang. Petitioner claims such action was taken without proper adherence to his right to due process. Although petitioner is now housed in a different prison, he apparently remains in administrative segregation. There is no allegation or indication, however, that the fact or duration of his custody is unlawful. Rather, petitioner's claims challenge the conditions of his confinement.

  The preferred practice in this Circuit is that challenges to conditions of confinement be brought in a civil rights complaint, not in a habeas petition. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (holding 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). Consequently, petitioner may bring his claim in a civil rights complaint, but not in a habeas petition. Cf. Wilwording v. Swenson. 404 U.S. 249, 251 (1971) (finding challenge to constitutionality of conditions of confinement more properly brought as civil rights action under 42 U.S.C. § 1983).

  Accordingly, the petition for a writ of habeas corpus is DISMISSED without prejudice to petitioner's raising his claim under 42 U.S.C. § 1983 in a civil rights action. In light of this dismissal, the motions for discovery, inspection of documents, an evidentiary hearing, appointment of counsel and to proceed in forma pauperis are DENIED and no fee shall be due.

  This order terminates docket numbers 2 through 8.

  The Clerk shall close the file and terminate any 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 for a writ of habeas corpus is DISMISSED without prejudice to petitioner's raising his claim under 42 U.S.C. § 1983 in a civil rights action.

20040505

© 1992-2004 VersusLaw Inc.



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