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Angel Jauregui v. Unknown

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


March 13, 2013

ANGEL JAUREGUI, PETITIONER,
v.
UNKNOWN, RESPONDENT.

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. Petitioner has not, however, filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of a request to proceed in forma pauperis or submit the appropriate filing fee.

However, the court will inform petitioner that if he chooses to proceed with this action by paying the filing fee or submitting an in forma pauperis application, the court intends to recommend that this federal habeas action be summarily dismissed. See Rule 4 of the Rules Governing Section 2254 Cases ("If it plainly appears from the petition . . . that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition. . . ."). A habeas action is proper when petitioner challenges the fact or duration of his custody and when a determination of his action may result in petitioner's entitlement to an earlier release. Here, petitioner challenges only his removal from double cell status to single cell status at his institution of confinement. This type of prison housing issue does not affect the duration of petitioner's custody. Furthermore, the court will not construe petitioner's petition as a civil rights complaint because prisoners have no constitutional right to a particular classification status, Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987), or to be incarcerated at a particular correctional facility, see Meachum v. Fano, 427 U.S. 215, 224-25 (1976). Similarly, a prisoner has no constitutional right to a double-cell status.

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

1. Petitioner shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis, the appropriate filing fee, or request for voluntary dismissal; petitioner's failure to comply with this order will result in the dismissal of this action; and

2. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis form used by this district.

20130313

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