ORDER AND FINDINGS AND RECOMMENDATIONS
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). 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.
In his petition, petitioner states that he has also filed a civil
rights complaint pursuant to
42 U.S.C. § 1983. The court has compared that civil rights complaint
with the pending habeas petition, and finds that they contain
virtually identical allegations against the same parties.*fn1
See Heilman v. Cherniss, No. 2:11-cv-0042 JAM EFB. Although
one action is a civil rights action
and the other is a habeas action, petitioner raises the same claims,
which relate solely to his conditions of confinement, in both actions.
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.
Moreover, this action is duplicative of the pending civil rights action. A suit is duplicative if the "claims, parties, and available relief do not significantly differ between the two actions." Barapind v. Reno, 72 F. Supp.2d 1132, 1145 (E.D. Cal. 1999) (quoting Ridge Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 572 F. Supp. 1210, 1213 (N.D. Ill. 1983)). "When a complaint involving the same parties and issues has already been filed in another federal district court, the court has discretion to abate or dismiss the second action. Id. at 1144 (citation omitted). "Federal comity and judicial economy give rise to rules which allow a district court to transfer, stay, or dismiss an action when a similar complaint has already been filed in another federal court." Id. at 1145 (citation omitted). "[I]ncreasing calendar congestion in the federal courts makes it imperative to avoid concurrent litigation in more than one forum whenever consistent with the right of the parties." Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979).
In light of the above, the court finds that this action should be dismissed and petitioner should proceed on his earlier filed civil rights action. See Rule 4, Rules Governing § 2254 Cases.
Accordingly, IT IS HEREBY ORDERED that petitioner's request to proceed in forma pauperis is granted.
Further, IT IS HEREBY RECOMMENDED that this action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal ...