IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 26, 2011
HUNG DUONG NGUON, PETITIONER,
TIM V. VIRGA, RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
Examination of the request to proceed in forma pauperis reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).
On January 19, 2011, petitioner consented to have the undersigned preside for all purposes, and no other parties have appeared.
Under Rule 4 of the Rules Governing § 2254 Cases, the court must conduct a preliminary review of § 2254 habeas petitions and dismiss any petition where it plainly appears that petitioner is not entitled to relief in this court. A writ of habeas corpus is available if the court finds that petitioner is in custody in violation of federal law. In his petition, petitioner does not allege that he is in custody in violation of federal law. Rather, he takes issue with his conditions of confinement (alleged maltreatment by medical personnel). If petitioner wishes to challenge conditions of confinement, the correct course of action in this court would be to commence an action under 42 U.S.C. § 1983. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). Petitioner is warned, however, that if he commences a § 1983 action, he will be required to pay the $350 filing fee, although he will be allowed to pay it in installments.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's request for leave to proceed in forma pauperis is granted;
2. Petitioner's application for writ of habeas corpus is dismissed;
3. This case is closed; and
4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253.
Gregory G. Hollows
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