No. C 02-2451 MMC (PR)
June 4, 2002
ORDER OF DISMISSAL
Ovidio Trinidad ("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.
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). If a constitutional violation has resulted in the loss of time credits, this affects the duration of a sentence, and the violation may only be remedied by way of a petition for a writ of habeas corpus. Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990)
In the petition, petitioner alleges that prison officials have placed inaccurate documentation in his court file indicating that he is a member of a certain prison gang. Petitioner alleges that he was not provided constitutionally required procedural protections prior to this action, and he seeks to have the documentation removed from the file. See generally Toussaint v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir. 1986). Although this documentation may impact where and with whom petitioner is housed, and his placement in administrative segregation, there is no allegation or indication that it has any impact on the duration of his sentence, such as by way of lost time credits. Petitioner's claim thus implicates the conditions of his confinement but not the fact or duration of his custody and, accordingly, cannot form the basis of habeas relief. The preferred practice in this Circuit is that challenges to conditions of confinement be brought in a civil fights 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). Accordingly, 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 disciplinary action that is in the nature of a claim attacking the conditions of confinement should be brought as a civil rights action under 42 U.S.C. § 1983); Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1989) (holding that prison disciplinary action resulting in the deprivation of time credits impacts the duration of confinement and may be challenged by way of a petition for a writ of habeas corpus).
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 in which he either pays the filing fee or files a completed application for leave to proceed in forma pauperis. In light of this dismissal, the applicatio for leave to proceed in forma pauperis is DENIED. No filing fee is due.
All pending motions are terminated and the clerk shall close the file.
IT IS SO ORDERED.