Opinion
Case No.: 18cv2817 GPC (BLM)
01-08-2019
MAURICE GAITHER, Petitioner, v. RAYMOND MADDEN, Warden, et al., Respondents.
ORDER: (1) CONSTRUING TRUST ACCOUNT STATEMENT AS A MOTION TO PROCEED IN FORMA PAUPERIS; (2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS; and (3) DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND
Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 together with a trust account statement which the Court CONSTRUES as a motion to proceed in forma pauperis.
MOTION TO PROCEED IN FORMA PAUPERIS
The trust account statement provided by Petitioner reflects a balance of $148.13. (ECF No. 2.) The filing fee associated with this type of action is $5.00. See 28 U.S.C. § 1914(a). It appears Petitioner can pay the requisite filing fee. Accordingly, the Court DENIES the request to proceed in forma pauperis.
FAILURE TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS
Upon review of the Petition, it appears to the Court that a Petition for Writ of Habeas Corpus brought pursuant to § 2254 is not the proper vehicle for the claims Petitioner presents. Challenges to the fact or duration of confinement are brought by petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 488-500 (1973); Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc). When a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Preiser, 411 at 500; Nettles, 830 F.3d at 927. On the other hand, a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody. Preiser, 411 at 500; Nettles, 830 F.3d at 927.
Petitioner claims that prison authorities improperly cancelled his appeal of a prison disciplinary hearing that did not result in any loss of custody credits. (See Pet., ECF No. 1 at 17-20, 36.) Petitioner's claims are not cognizable on habeas because they do not challenge the constitutional validity or duration of confinement. See 28 U.S.C. 2254(a); Preiser, 411 U.S. at 500; Heck v. Humphrey, 512 U.S. 477, 480-85 (1994); Nettles, 830 F.3d at 931. "[A] § 1983 action is the exclusive vehicle for claims brought by state prisoners that are not within the core of habeas corpus." Nettles, 830 F.3d at 927.
CONCLUSION
Based on the foregoing, the Court CONSTURES Petitioner's trust account statement as a motion to proceed in forma pauperis, DENIES the motion to proceed in forma paupers, and DISMISSES this case without prejudice and with leave to amend. If Petitioner wishes to proceed with this case he must, no later than February 26, 2019: (1) pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee; AND (2) file a First Amended Petition that cures the pleading deficiencies outlined in this Order. If Petitioner wishes to file a case pursuant to 42 U.S.C. § 1983, he must file a civil rights complaint pursuant to § 1983 which will be given a new case number. The Clerk of Court is directed to mail Petitioner a blank motion to proceed in forma pauperis form , a blank First Amended Petition form , and a blank 42 U.S.C. § civil rights complaint form together with a copy of this Order.
IT IS SO ORDERED. Dated: January 8, 2019
/s/_________
Hon. Gonzalo P. Curiel
United States District Judge