The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING CASE WITHOUT PREJUDICE
Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He has also filed a request to proceed in forma pauperis which reflects a $162.54 balance in his prison trust account. The filing fee associated with this type of action is $5.00. See 28 U.S.C. § 1914(a).
It appears Petitioner can pay the requisite filing fee. Accordingly, the Court DENIES the request to proceed in forma pauperis, and DISMISSES the case without prejudice for failing to satisfy the filing fee requirement.
This action is also subject to dismissal because Petitioner has not alleged exhaustion of his state court remedies. Federal habeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, how one or more of his or her federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: "If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Id. at 365-66 (emphasis added). For example, "[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in state court." Id. at 366 (emphasis added).
Nowhere in the Petition does Petitioner allege that he raised his claims in the California Supreme Court. In fact, he specifically indicates he did not seek review of his claims in the California Supreme Court. (See Pet. at 11.) If Petitioner has raised his claims in the California Supreme Court he must so specify. The burden of proving that a claim has been exhausted lies with the petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
Moreover, the Court notes that Petitioner presents claims regarding the conditions of his confinement. Petitioner alleges that most of his legal property was improperly confiscate by prison officials, and although half of his property was returned to him, the other half remains in storage, and he alleges he is being denied access to that property in retaliation for helping other inmates with their legal work. (Pet. at 4a-4d.) He requests the Court to declare the actions of the prison officials to be unconstitutional, and to order his release from custody unless he is granted access to his property and paid monetary damages. (Id. at 4d-4e.)
Challenges to the fact or duration of confinement are brought by petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 488-500 (1973). When a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Id. at 500. On the other hand, a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody. Id. at 499; McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997). Monetary damages are not an available remedy in a habeas action. Wolff v. McDonnell, 418 U.S. 539, 554 (1974); Preiser, 411 U.S. at 493. It appears that Petitioner may wish to present his claims in a complaint pursuant to 42 U.S.C. § 1983, which authorizes the recovery of monetary damages for constitutional violations, and generally does not require exhaustion of state court remedies. Patsy v. Board of Regents, 457 U.S. 496, 507 (1982).
Based on the foregoing, the Court DISMISSES this case without prejudice for failure to satisfy the filing fee requirement and failure to allege exhaustion of state court remedies. If Petitioner wishes to proceed with this habeas action, he must satisfy the filing fee requirement and file a First Amended Petition which cures the defects identified in this Order on or before January 11, 2009. Petitioner is cautioned that if he has failed to allege exhaustion of his state court remedies with respect to his claims on or before January 11, 2009, and still wishes to pursue his claims through habeas corpus in this Court, he will be required to file a new habeas petition which will be given a new civil case number. The dismissal is also without prejudice to Petitioner to file a separate civil rights Complaint pursuant to 42 U.S.C. § 1983, if he wishes, which will be given a separate civil case number.
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