The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE WITHOUT ORDER GRANTING APPLICATION PREJUDICE
Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, accompanied by a certified copy of his prison trust account statement which the Court will construe as a motion to proceed in forma pauperis. The Petition is subject to dismissal because Petitioner is challenging the conditions of his confinement, alleging that his personal property has been confiscated, rather than the fact or duration of incarceration, and his claims are therefore properly brought in a civil rights action pursuant to 42 U.S.C. § 1983 in a court with proper venue, rather than in a habeas petition filed in this Court.
MOTION TO PROCEED IN FORMA PAUPERIS
Petitioner has no funds on account at the California correctional institution in which he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner's application to proceed in forma pauperis, and allows Petitioner to prosecute the above-referenced action as a poor person without being required to prepay fees or costs and without being required to post security.
FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM
The Petition is subject to dismissal without prejudice because Petitioner has failed to allege that his state court conviction or sentence violates the Constitution of the United States, and has therefore failed to state a cognizable federal habeas claim. Petitioner alleges that when he was transferred from the California Correctional Institution at Tehachapi, California, located in the Eastern District of California (see 28 U.S.C. § 84(b)), to Avenal State Prison at Avenal, California, also located in the Eastern District of California (id.), certain items of his personal property which inmates were entitled to possess at the California Correctional Institution were confiscated because they are not allowed at Avenal State Prison. (See Pet. at 6-10.) Petitioner purports to bring causes of action for breach of contract and violation of due process. (Id.)
Challenges to the fact or duration of confinement are properly brought in a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, whereas challenges to conditions of confinement are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 488-500 (1973). When a state prisoner is challenging the very fact or duration of his or her physical imprisonment, and the relief he or she seeks is a determination that he or she is entitled to immediate release or a speedier release, the sole federal remedy is a writ of habeas corpus. Id. at 500. On the other hand, a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of prison life, including denial of access to personal property, but not to the fact or length of custody. Id. at 499; McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997).
Preiser left open the possibility of assertion of a conditions-of-confinement claim in a habeas application where additional and unconstitutional restraints are at issue. See Preiser, 411 U.S. at 499 ("This is not to say that habeas corpus may not also be available to challenge such prison conditions. When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.") The allegations contained in the Petition here regarding possession of personal property are not the type of "additional and unconstitutional restraints" which are distinct from conditions of confinement, and Petitioner's allegations therefore do not state a claim cognizable on federal habeas. Wilwording v. Swenson, 404 U.S. 249, 251 (1971); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991).
Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal of a habeas petition "[i]f it plainly appears from the face of 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. Here, it appears plain from the Petition that Petitioner is not presently entitled to federal habeas relief because Petitioner has failed to state a claim cognizable on federal habeas. Petitioner is free to present the claims alleged in the Petition in a separate civil rights complaint pursuant to 42 U.S.C. § 1983, if he wishes. However, such a complaint should be filed, if at all, in a District where proper venue lies, which does not appear to be the Southern District of California.*fn1
The Court GRANTS Petitioner's Motion to proceed in forma pauperis and DISMISSES the Petition without prejudice due to Petitioner's failure to state a claim cognizable on federal habeas. The dismissal is without leave to amend but without prejudice to Petitioner to present his claims in a civil rights complaint pursuant to 42 U.S.C. § 1983, rather than a habeas petition, in a court of proper venue.
The Clerk shall close the case.