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Dennis Shaw v. S.L. Hubbard

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 16, 2012

DENNIS SHAW, PETITIONER,
v.
S.L. HUBBARD,
RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to petitioner's consent. Doc. 4. A makeshift weapon was found in the kitchen where petitioner and others were working. Prison officials believed petitioner was involved, but did not file a Rule Violation Report against petitioner and petitioner lost no credits as a result of the incident. However, the Unit Classification Committee removed petitioner from the prison job. The instant habeas petition states that there was insufficient evidence for petitioner to be removed from his job.

Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat.1979, as amended, 42 U.S.C. § 1983. Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 1304--1305 (2004) (per curiam). Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action. Muhammad v. Close, 540 U.S. at 750.

In the instant case, petitioner was never in custody or confined related to the makeshift weapon, nor did it affect the duration of his sentence, therefore petitioner cannot proceed with this habeas petition.*fn1

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's motion to proceed in forma pauperis is granted;

2. This petition is dismissed;

3. A certificate of appealability shall not issue in this action.

GGH: AB shaw1626.dis


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