IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 19, 2009
DELANEY BARNES, PETITIONER,
CLAUDE FINN, WARDEN, RESPONDENT.
Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. A judge "entertaining an application for a writ of habeas corpus shall forthwith 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. It is not apparent from the face of the application that the petitioner is not entitled to relief.
Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1). Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.
The court also notes that in addition to his amended petition for writ of habeas corpus, petitioner has filed various letters and notices relating to the conditions of his confinement, as opposed to the fact or duration of his confinement. See Docket Nos. 19 (regarding harassment by a correctional officer); 20 (regarding problems with medical staff). Petitioner is advised that a civil rights action, not a habeas corpus proceeding, is the proper mechanism for a prisoner seeking to challenge the conditions of his confinement. 42 U.S.C. § 1983; Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991).
Accordingly, it is hereby ordered that:
1. Petitioner's request for leave to proceed in forma pauperis is granted.
2. Respondent shall file and serve either an answer or a motion in response to petitioner's application within 60 days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rules 4, 5, Fed. R. Governing § 2254 Cases.
3. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer.
4. If the response to petitioner's application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within 30 days of service of the motion, and respondents' reply, if any, shall be filed within 15 days thereafter.
5. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's October 17, 2008 amended petition for a writ of habeas corpus with any and all attachments on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California. The Clerk of the Court also shall serve on the Senior Assistant Attorney General the consent form used in this court.
6. If petitioner wishes to pursue claims regarding his conditions of confinement, he must file a separate civil rights action, as this action is proceeding only on his October 17, 2008 amended petition for writ of habeas corpus.
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