IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 6, 2010
HUNG DUONG NGUON, PETITIONER,
TIM V. VIRGA, RESPONDENT.
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).
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. Therefore, the request is granted.
Petitioner states that a number of correctional officers stripped him naked outside on a sub-freezing day, poured ice water on him, and let him remain outside despite his pleas to go inside or be given clothes or a blanket.
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, 484 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing § 2254 Cases. Because petitioner's claim does not challenge his custody, it is not appropriate for a § 2254 action. Therefore, this case is dismissed. See Rule 4, Rules Governing § 2254 Cases. Petitioner may wish to file a lawsuit under 42 U.S.C. § 1983 instead.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's request to proceed in forma pauperis is granted; and
2. This action is dismissed.
© 1992-2010 VersusLaw Inc.