UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
January 7, 2011
TERRY GONZALES (WARDEN), RESPONDENT.
The opinion of the court was delivered by: Manuel L. Real United States District Judge
ORDER SUMMARILY DISMISSING PETITION
For reasons stated below, this petition is summarily dismissed.
Although the pro se petitioner is a prisoner in custody under a state court judgment, the present petition does not challenge the legality of his conviction or sentence. Instead, the present petition addresses conditions of confinement. Petitioner seeks monetary damages on an Eighth Amendment medical claim.
The court need neither grant the writ nor order a return if "it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243; see also Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254, Rule 4 (petition may be summarily dismissed if petitioner plainly not entitled to relief); Local Civil Rules, C.D. Cal., L.R. 72-3.2 (magistrate judge may submit proposed order for summary dismissal to district judge if petitioner plainly not entitled to relief).
This court has jurisdiction to "entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court" who alleges that such custody violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. §§ 2254(a), 2241(c)(3); also Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973)(essence of habeas corpus is attack by person in custody on legality of custody and traditional function of writ is to secure release from illegal custody). The proper legal means by which to challenge conditions of confinement is a civil rights action, and challenges to conditions of confinement (rather than legality of custody) are not cognizable on federal habeas review.*fn1 Preiser, 411 U.S. at 498-499; Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991).
Petitioner does not challenge the legality of his custody, but rather seeks relief concerning specific conditions of confinement. Accordingly, if he wishes to pursue his claims in federal court his proper remedy is a civil rights action. Petitioner is advised that, if he wishes to pursue such an action, he must do so pursuant to the Prisoner Litigation Reform Act of 1995 ("PLRA"), which requires, inter alia, that he first exhaust any administrative remedies, and that he pay the full filing fee (by installment if necessary).
ORDER IT IS THEREFORE ORDERED that judgment be entered dismissing the present petition without prejudice to Petitioner pursuing a civil rights action in an appropriate court.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on petitioner.
January 5, 2011
CARLA M. WOEHRLE United States Magistrate Judge