Opinion
No. C 02-5425 MMC (PR)
January 3, 2003
ORDER OF DISMISSAL
Alonzo Lee Taylor ("petitioner"), currently incarcerated at the Correctional Training Facility in Soledad, California, filed this prose petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing feel.
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). In the instant petition, petitioner alleges that prison officials are planning to collect a blood sample for purposes of recording his DNA information. There is no allegation or indication that the fact or duration of his custody is unlawful. Rather, petitioner's claims challenge the conditions of his confinement.
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 that a challenge to the constitutionality of the conditions of confinement should be brought as a 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. All pending motions are terminated and the clerk shall close the file.