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Jacob v. Evans

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 11, 2010

MICHAEL CHRISTIAN JACOB, PETITIONER,
v.
MIKE EVANS, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

The court can only entertain a petition for writ of habeas corpus under 28 U.S.C. § 2254 on the ground that a state prisoner is in custody in violation of state law. The claim presented in petitioner's habeas petition concerns the fact that he has been identified by corrections officials as a member of the "Crip" prison gang. Because petitioner's claim does not concern the fact that he is in custody or the duration of his custody, it is not appropriate for a § 2254 action. Therefore, this case will be dismissed. See Rule 4, Rules Governing Sec. 2254 Cases.

The claim presented may be more appropriately pursued in an action brought under 42 U.S.C. § 1983. The court will order the Clerk of the Court to send petitioner a copy of the court's form-complaint for prisoners seeking relief under § 1983. If petitioner decides to commence a § 1983 action, he is warned that the filing fee for a § 1983 action is $350, but the fee may be paid in installments if petitioner qualifies for in forma pauperis status in the new case.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's request to proceed in forma pauperis is granted;

2. The Clerk of the Court is directed to send petitioner a copy of the court's form-complaint for prisoner's seeking relief under § 1983 and in forma pauperis form; and

3. This action is dismissed.

20100211

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