The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER OF DISMISSAL WITH LEAVE TO AMEND; GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS
Petitioner, a California prisoner proceeding pro se, filed the
above-titled petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner seeks expungement of infractions that
were placed in his record while he was incarcerated in the San
Mateo County Jail. According to petitioner, the subject
infractions caused his classification score in the state prison
system to increase by sixteen points.
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).
Traditionally, challenges to prison conditions have been
cognizable only by way of a complaint filed pursuant to
42 U.S.C. § 1983, while challenges implicating the fact or duration of
confinement must be brought by way of a habeas petition. Docken
v. Chase, 393 F.3d 1024, 1026 (9th Cir. 2004). To whatever extent the
infractions challenged by petitioner implicate the fact or
duration of his confinement, such as by causing him to lose time
credits, he may challenge them in a habeas petition. See
Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997);
Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990).
Petitioner does not allege, however, any such consequences in
connection with the infractions in question. As a result, the
infractions appear to have had an impact on the conditions of his
confinement, but not on the duration of his sentence. The Ninth
Circuit has held that "habeas jurisdiction is absent, and a §
1983 action proper, where a successful challenge to a prison
condition will not necessarily shorten the prisoner's sentence."
Ramirez, 334 F.3d at 859. Consequently, challenges to
conditions of confinement should 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 ground that challenges
to terms and conditions of confinement must be brought in civil
Accordingly, petitioner will be granted leave to amend the
petition, if he can do so in good faith, to allege any impact the
challenged infractions have had on the fact or duration of his
confinement, such as the loss of time credits. Failure to do so
will result in the dismissal of this action without prejudice to
petitioner's bringing the claims in a civil rights complaint
pursuant to 42 U.S.C. § 1983.
In light of the foregoing, the Court orders as follows:
1. The petition is DISMISSED WITH LEAVE TO AMEND. If petitioner
wishes to amend the petition, he must file, within thirty (30)
days of the date this order is filed, an amended petition in
which he corrects the deficiencies noted above. The amended
petition must include the caption and civil case number used in
this order, No. C 05-2944 MMC (PR), and must include the words
AMENDED PETITION on the first page. In the amended petition,
petitioner must include all the claims he wishes to present; he
may not incorporate matters from the original petition by
reference. 2. If petitioner fails to timely amend the petition as ordered
herein, this action will be dismissed without prejudice to
petitioner's raising the claims in a civil rights complaint
pursuant to 42 U.S.C. § 1983.
3. It is petitioner's responsibility to prosecute this case.
Petitioner must keep the Court and respondent informed of any
change of address and must comply with the Court's orders in a
timely fashion. Failure to do so may result in the dismissal of
this action for failure to prosecute pursuant to Federal Rule of
Civil Procedure 41(b) or Local Rule 3-11.
4. The application to proceed in forma pauperis is GRANTED in
light of petitioner's lack of funds.
This order terminates Docket No. 3.
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