IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 25, 2012
ROBERTO HERRERA, PETITIONER,
CONNIE GIPSON, RESPONDENT.
The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Petitioner has consented to have a magistrate judge conduct all proceedings in this case. See 28 U.S.C. § 636(c).
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
A writ of habeas corpus may issue under 28 U.S.C. § 2254 upon a showing that a state court prisoner is in custody in violation of federal law. Generally speaking, cognizable § 2254 claims concern either the fact of, or the duration of a state prisoner's confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Here, petitioner challenges the fact the he has been identified by prison officials as an associate of a prison gang. One of the consequences of being identified as a gang member is more restrictive conditions of confinement.
Because petitioner does not challenge the fact that he is in prison, or the length of his sentence, his claims are not cognizable in a 28. U.S.C. § 2254 action. If plaintiff wishes to pursue his claims, he should file an action for violation of civil rights under 42 U.S.C. § 1983. Plaintiff is warned that if he initiates a § 1983 action, he will be required to pay the $350 filing fee, although he will be permitted to pay the fee in installments.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's motion 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.
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