The opinion of the court was delivered by: Manuel L. Real United States District Judge
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner is a California state prisoner who is incarcerated at Kern Valley State Prison. On May 23, 2011, he filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 ("Petition"). Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Rules") requires the summary dismissal of Section 2254 petitions "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4, 28 U.S.C. foll. § 2254. Summary dismissal of the Petition is required for the reasons set forth below.
The Petition alleges a single cryptic claim, to wit, "Petitioner contends (CDCR) allowed Petitioner's Personal Property to be 'Extorted' due to Derelict [sic] of Duty." (Petition at 5, ¶ 7.a; emphasis in original.) The attachments to the Petition indicate Petitioner apparently contends that: on January 24, 2010, and February 3, 2010, other prisoners who are gang members "extorted" various items of Petitioner's personal property; and two correctional officers at Kern Valley State Prison, through their negligence, allowed this "extortion" to occur. (See Petitioner's first level appeal form dated February 17, 2010, a copy of which is appended to the Petition.)
Generally, a state prisoner challenging the fact or duration of his state conviction or sentence on the grounds of alleged violations of federal rights, and seeking release from imprisonment as a result, does so by way of a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841 (1973); Sisk v. Branch, 974 F.2d 116, 117 (9th Cir. 1991). However, the "proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody," is a civil rights action under 42 U.S.C. § 1983, not a habeas action. Preiser, 411 U.S. at 500, 93 S. Ct. at 1841; see also Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Petitioner's allegations attempt to state a civil rights claim based on the conditions of his confinement -- to wit, a claim that two correctional officers negligently failed to prevent other prisoners from taking Petitioner's properly -- rather than an attack on the fact or duration of Petitioner's confinement. Accordingly, the allegations of the Petition are not cognizable under 28 U.S.C. § 2254 but, instead, must be raised by way of a civil rights complaint brought under 42 U.S.C. § 1983.
While the Court may construe a flawed habeas petition as a civil rights action, see Willwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 409 (1971), doing so in this case would be inappropriate, given that: (1) the Petition was not accompanied by the $350 filing fee; (2) the Petition was not accompanied by a declaration in support of a request to proceed without prepayment of the filing fee, a certified copy of Petitioner's trust fund account statement for the preceding six months, and an authorization by Petitioner to have the $350 filing fee deducted from his trust account pursuant to 28 U.S.C. § 1915(a)(2) & (b); (3) although Petitioner has sought state habeas and/or mandamus relief based on his present allegations, there is no evidence that he has exhausted his administrative remedies for his claim, a prerequisite to filing a civil rights action; (4) Petitioner has named a single*fn1 correctional officer as a Respondent, but he has not identified the capacity in which he or any other defendant is sued under 42 U.S.C. § 1983; (5) because Petitioner is not incarcerated in this district, this*fn2 Court is not the appropriate venue for any such civil rights action; and (6) the claim alleged in the Petition does not state a cognizable claim under 42 U.S.C. § 1983.*fn3
Based upon the foregoing, it is plain that the Court lacks jurisdiction to consider the Petition. Accordingly, IT IS ORDERED that Judgment shall be entered dismissing the instant Petition without prejudice.
In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S. Ct. 1595, 1604 (2000). The Court concludes that a certificate of appealability is unwarranted, and thus, a certificate of appealability is DENIED.
PRESENTED BY: MARGARET A. NAGLE UNITED STATES ...