No. 2:09-cv-3407 JFM (HC).
January 14, 2010
Petitioner is a state prisoner proceeding pro se. On December 8, 2009, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. However, petitioner's claims concern (a) his placement in Administrative Segregation instead of the prison infirmary following his return from a hospital where he was treated for cancer and (b) his allegedly unwarranted rule violation for refusing to accept a cell-mate while in Administrative Segregation. (Doc. No. 1 at 4.) Allegations concerning the conditions of petitioner's confinement are not cognizable in a federal habeas corpus action. See Preiser v. Rodriguez, 411 U.S. 475 (1973) (federal writ of habeas corpus available only to challenge fact or duration of confinement and not conditions thereof). Moreover, if petitioner wishes to pursue a civil rights action pursuant to 42 U.S.C. § 1983 concerning the conditions of confinement, he will incur a liability in the amount of the $350.00 federal court filing fee for a civil rights action, even if he is granted leave to proceed in forma pauperis. See 28 U.S.C. §§ 1914, 1915(b).
Thus, the petition will be dismissed and petitioner will be granted leave to file a civil rights complaint. The Clerk of the Court will be directed to provide petitioner with the civil rights complaint form. The court notes that petitioner also filed a memorandum with accompanying exhibits demonstrating exhaustion of his administrative remedies. Petitioner may ask the court to remove those exhibits from the petition and append them to his civil rights complaint if he wishes to avoid making additional photocopies.
Accordingly, IT IS HEREBY ORDERED that:
1. The December 8, 2009 petition is dismissed.
2. Within thirty days from the date of this order, petitioner shall complete the attached Notice of Amendment and submit the following documents to the court:
a. The completed Notice of Amendment; and
b. An original and one copy of the Amended Complaint.
Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned this case and must be labeled "Amended Complaint"; failure to file an amended complaint in accordance with this order may result in the dismissal of this action.