The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER RE SUMMARY DISMISSAL OF ACTION
On July 29, 2011, petitioner filed a Petition for Writ of Habeas Corpus ("Petition") herein, ostensibly pursuant to 28 U.S.C. § 2254. It appears from the face of the Petition that petitioner is a pretrial detainee, awaiting trial in San Bernardino County Superior Court on charges of resisting arrest. (Petition at ¶ 3.) Petitioner asserts the following grounds for relief in the Petition: (1) "Petitioner was denied right to self representation and procedural due process of law"; (2) "petitioner was denied right to be free from self incrimination and due process of law"; and (3) "petitioner was denied due process of law to criminal proceedings." (See Petition at 3-4.) The Court notes that on July 8, 2011, petitioner filed a federal civil rights action (Case No. CV 11-5415-CAS (DTB)) wherein he raised essentially the same allegations as those raised in the Petition.
Although petitioner is a pretrial detainee, the allegations of the Petition do not attack the underlying facts or duration of his detention, but rather, challenge the manner in which he is currently being detained.
Claims such as these which are directed to the conditions of petitioner's confinement may not properly be asserted in a habeas petition, or as part of a habeas petition. See 28 U.S.C. § 2254(a); see also Preiser v. Rodriguez, 411 U.S. 475, 498-500, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). Rather, such claims must be asserted in a separate civil rights action. The Court does have discretion to construe petitioner's habeas petition as a civil rights complaint. See Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971); Hansen v. May, 502 F.2d 728, 729 (9th Cir. 1974). In this instance, however, the Court chooses not to exercise such discretion, as petitioner has a pending civil rights action in which he asserts essentially the same claims as those raised in the Petition.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, IT THEREFORE IS ORDERED that this action be summarily dismissed without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
David T. Bristow United States Magistrate Judge
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