Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a).
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.
The court has reviewed the petition in detail and, for the reasons explained below, finds that in order to proceed petitioner must file an amended petition. See Rule 4, Rules Governing Section 2254 Cases (requiring summary dismissal of habeas petition if, upon initial review by a judge, it plainly appears "that the petitioner is not entitled to relief in the district court").
Petitioner is currently confined at High Desert State Prison. He alleges that his due process rights were violated during a prison disciplinary hearing where he was found guilty of possessing a weapon. Petitioner alleges that as a result, he was ordered to serve a term in the Security Housing Unit, and forced to send home some of his personal property. Thereafter, according to petitioner, prison officials retaliated against him for filing a petition for writ of habeas corpus by transferring him to the institution where he is currently housed, and which also houses a known enemy of petitioner's. Petitioner requests that he be released from custody, that he be transferred to an institution where his enemies are not also housed, and that respondents be ordered to compensate petitioner for the property he was forced to mail home.
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. A district court must entertain a habeas petition "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). By its nature, a petition for a writ of habeas corpus challenges the legality of the fact or duration of confinement. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). However, suit under the civil rights statute is appropriate where a prisoner challenges the conditions of his confinement. See Preiser, 411 U.S. at 499. Even where the applicant challenges the fact or duration of confinement, a federal court cannot grant relief for alleged errors in the interpretation and application of state law. See Estelle v. McGuire, 502 U.S. 62 (1991); Engle v. Issac, 456 U.S. 107, 119 (1982); Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir.1985); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985).
A petitioner seeking a writ of habeas corpus must name as respondent the person having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing Section 2254 Cases. This person ordinarily is the warden of the facility where petitioner is confined. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner names as respondents the California Department of Corrections and Rehabilitation, and Correctional Officers Mendez and Braga, who do not have custody over petitioner. Petitioner has not named the proper respondent.
Additionally, as noted above, petitioner claims that his due process rights were violated, resulting in his placement in the Security Housing Unit and the loss of personal property. He also alleges that prison officials transferred him in retaliation for filing a petition for writ of habeas corpus. It is not clear from the allegations that any of these actions resulted in the loss of good time credits, thereby affecting the duration of his confinement. Accordingly, it does not appear that petitioner is entitled to relief, as petitioner does not challenge the legality of his conviction, a parole proceeding, or other adjudication that has led to his current incarceration. Rather, petitioner challenges conditions of his confinement. 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 ORDERED that:
1. Petitioner's request for leave to proceed in forma pauperis is granted.
2. Petitioner has 20 days from the date of this order to file an amended petition for a writ of habeas corpus curing the deficiencies identified in this order. The petition must bear the docket number assigned to this action and be styled, "First Amended Petition." Failure to comply with this order will result in dismissal of this action without prejudice to filing a civil rights action.
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