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HARRIS v. YATES

United States District Court, N.D. California


May 5, 2004.

ARTHUR HARRIS, Petitioner,
v.
JAMES YATES, Respondent

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

ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Arthur Harris ("petitioner"), currently incarcerated at the Pleasant Valley State Prison ("PVSP"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of California. Thereafter, the case was transferred to this district.

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 PVSP officials have unconstitutionally requested that he surrender blood samples for purposes of recording his DNA information, and that he has refused those requests. There is no allegation or indication 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.

  The application to proceed in forma pauperis is GRANTED in light of petitioner's lack of funds.

  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

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