Opinion
1:23-cv-00381-ADA-EPG-HC
06-30-2023
CESARIO VIZCARRA MEDINA, Petitioner, v. TAMMY CAMPBELL, Respondent.
ORDER VACATING MAY 4, 2023 FINDINGS AND RECOMMENDATION AND DIRECTING CLERK OF COURT TO CONVERT CASE TO 42 U.S.C. § 1983 CIVIL RIGHTS ACTION AND SEND PETITIONER APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF No. 7)
Petitioner Cesario Vizcarra Medina is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 4, 2023, the undersigned issued findings and recommendation to dismiss the first amended petition because conditions of confinement claims are not cognizable in federal habeas corpus. (ECF No. 7.) The undersigned also found that it would be inappropriate to construe the habeas petition as a civil rights complaint due to the differences between habeas corpus and prisoner civil rights actions “and the disadvantages that recharacterization may have on Petitioner's claims.” (Id. at 3.) Petitioner has filed objections to the findings and recommendation and requests that the petition “be converted to a § 1983 civil rights action and understands the consequences of such conversion.” (ECF No. 8 at 2.)
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendation issued on May 4, 2023 (ECF No. 7) is VACATED;
2. The Clerk of Court is DIRECTED to convert the instant case to a 42 U.S.C. § 1983 civil rights action;
3. The Clerk of Court is DIRECTED to send Petitioner an application to proceed in forma pauperis; and
4. Petitioner SHALL SUBMIT an application to proceed in forma pauperis, completed and signed, or in the alternative, pay the $402.00 fee for the civil rights action within THIRTY (30) days from the date of service of this order.
IT IS SO ORDERED.