Opinion
No. C 04-2082 MMC (PR).
August 31, 2004
ORDER OF DISMISSAL (Docket Nos. 2 4).
Oba Frelimo ("petitioner"), currently incarcerated at Pelican Bay State Prison ("PBSP"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has also applied for leave to proceed in forma pauperis.
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
Petitioner alleges that various conditions of his confinement are violating his constitutional rights to be free from cruel and unusual punishment and for his "citizenship rights not to be abridged." Specifically, he claims that prison officials have placed him in a cell with inadequate clothing, subjected him to bodily searches for weapons, sent him to the Secured Housing Unit, and "filed false documents" against him. He argues that these conditions are so egregious that the Court should issue a writ for his immediate release from PBSP.
The preferred practice in this Circuit is that challenges to conditions of confinement be brought in a civil rights complaint, not in a habeas petition. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (holding civil rights action is proper method of challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890, 891-92 n. 1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and conditions of confinement must be brought in civil rights complaint). Consequently, petitioner may bring his claim in a civil rights complaint, but not in a habeas petition. Cf. Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (finding challenge to constitutionality of conditions of confinement more properly brought as civil rights action under 42 U.S.C. § 1983).
Accordingly, the petition for a writ of habeas corpus is DISMISSED without prejudice to petitioner's raising his claim under 42 U.S.C. § 1983 in a civil rights action.
The application for leave to proceed in forma pauperis is GRANTED.
This order terminates Docket Nos. 2 and 4.
The Clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.[X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DISMISSED without prejudice to petitioner's raising his claim under 42 U.S.C. 1983 in a civil rights action. The application for leave to proceed in forma pauperis is GRANTED.