The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING CLERK OF COURT TO TERMINATE ACTION
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on May 26, 2010. Petitioner claims that Magistrate Judge Sandra M. Snyder improperly ordered him to pay $350.00 for the filing fee instead of $5.00. The petition must be dismissed.
First, Petitioner's claim is not cognizable via section 2254. Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. It is without doubt that the claim raised in the instant Petition does not in any way challenge the "legality or duration" of Petitioner's confinement and is therefore not cognizable under section 2254.
Second, federal judges are absolutely immune from civil liability for damages and declaratory, injunctive, and other equitable relief for their judicial acts. Mullis v. U.S. Bankruptcy Court, Dist. of Nevada, 828 F.2d 1385, 1394 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988). "'A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction.'" Mullis, 828 F.2d at 1388 (quoting Stumpman v. Sparkman, 435 U.S. 349, 356-357 (1978)). A clear absence of all jurisdiction means a clear lack of all subject matter jurisdiction. Id. at 1389.
In addition, judicial immunity will be lost if the judge performs an act that is not "judicial" in nature. The factors relevant in determining whether an act is judicial "relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Stump v. Sparkman, 435 U.S. at 362.
The allegation in the Petition establish that the judges are entitled to absolute judicial immunity. Petitioner is complaining of actions or rulings made by the Magistrate Judge Snyder in relation to an unidentified case. The actions or rulings made by the judge in connection with Petitioner's case to which the judge was assigned were within her jurisdiction.
Because Petitioner cannot possibly win relief against Magistrate Judge Snyder because of absolute judicial immunity, the Court hereby DISMISSES the Petition without further proceedings and the Clerk of Court is directed to terminate this action See Wong v. Bell, 642 F.2d 359, 361-362 (9th Cir. 1981).
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