Opinion
2:14-cv-00060-JCM-NJK
01-16-2014
KENNETH HERNANDEZ, Petitioner, v. NSDC, et at., Respondents.
ORDER
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an inmate.
Rule 4 of the Rules Governing § 2254 Cases requires the court to make a preliminary review of each petition for writ of habeas corpus. The court must dismiss a petition "[i]f it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief in the district court." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9 Cir. 1990).
A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). "According to traditional interpretation, the writ of habeas corpus is limited to attacks upon the legality or duration of confinement." Crawford v. Bell, 599 F.2d 890, 891 (9 Cir. 1979) citing Preiser v. Rodriguez, 411 U.S. 475, 484-86 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. Petitioner's allegations, however, do not challenge the legality or duration of his confinement. Rather, petitioner's claims challenge the conditions of his confinement. Thus, his claims are not appropriate for habeas corpus relief. Challenges to the conditions of confinement are more appropriately raised in civil rights action. Badea v. Cox, 931 F.2d 573, 574 (9 Cir. 1991); Crawford v. Bell, 599 F.2d at 891-92 (9 Cir. 1979). The clerk of court will be directed to send plaintiff the appropriate forms for filing a prisoner civil rights action.
Additionally, this matter has not been properly commenced because petitioner submitted incomplete financial paperwork. The in forma pauperis application was not submitted on the court-approved form as required by Local Rule LSR 1-1. In addition to filing an application to proceed in forma pauperis on the court-approved form, a prisoner seeking to proceed in forma pauperis "shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(1), (2); Local Rule LSR 1-2. Petitioner has failed to submit an in forma pauperis application on the court-approved form and has failed to provide the necessary financial information. Due to the defects presented, the in forma pauperis application will be denied.
IT IS THEREFORE ORDERED that this action is DISMISSED WITH PREJUDICE for failure to state a cognizable habeas corpus claim.
IT IS FURTHER ORDERED that the application to proceed in forma pauperis (ECF No. 1) is DENIED.
IT IS FURTHER ORDERED that petitioner's motion at ECF No. 2 is DENIED.
IT IS FURTHER ORDERED that the clerk of the court shall send petitioner the following: (1) two copies of an in forma pauperis application form for a prisoner and instructions for same; (2) two copies of a blank 42 U.S.C. § 1983 prisoner civil rights form and instructions for the same; and (3) one copy of the papers submitted by plaintiff at ECF No. 1.
IT IS FURTHER ORDERED that plaintiff may file a new complaint and new in forma pauperis application in a new action, but he may not file further documents in this action.
IT IS FURTHER ORDERED that the clerk of the court shall enter judgment accordingly.
IT FURTHER IS ORDERED that a certificate of appealability is DENIED. Reasonable jurists would not find the dismissal of the improperly-commenced action without prejudice to be debatable or wrong.
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UNITED STATES DISTRICT JUDGE