Opinion
No. 2:05-CV-0096.
April 29, 2005
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS FOR FAILURE TO PAY THE FILING FEE
On March 28, 2005, petitioner tendered to this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody wherein he appears to challenge his classification to administrative segregation. Petitioner did not submit with his habeas application any payment to satisfy the requisite filing fee, nor did he submit an application to proceed in forma pauperis with a certified in forma pauperis data sheet from the institution in which he is confined. Consequently, on March 29, 2005, the undersigned temporarily granted petitioner permission to proceed in forma pauperis, pending submission of an Application to Proceed In Forma Pauperis and a certified in forma pauperis data sheet from the penal institution in which he is incarcerated or, alternatively, receipt of the $5.00 filing fee. Petitioner was given twenty (20) days from the entry of the Order, or until April 19, 2005, in which to submit the request and data sheet, pay the filing fee, or submit evidence that petitioner has authorized the institution to disburse the requisite funds from his trust account by properly completing a Form I-25 entitled "Inmate Request for Withdrawal." Petitioner was warned that his failure to properly supplement or pay the filing fee within the time allowed by this Order, would result in an immediate recommendation for the dismissal of this case without further notice.
On April 8, 2005, this Court received correspondence from petitioner in which he stated the habeas application he forwarded to this Court was not complete, did not meet the instructions for filing a habeas application, and was not properly signed. Petitioner advised he sent the habeas application with a "request for advise" and appears to request this Court "supply [him] back the 2254 form [he] sent . . . for complete with the required instructions." Petitioner's request is denied.
As of this date, petitioner has failed to follow the Court's Order to submit a request and data sheet, pay the filing fee, or submit evidence that he has authorized the institution to disburse the requisite funds from his trust account. The undersigned further notes that petitioner's challenge to his classification fails to allege he was deprived of some right secured to him by the United States Constitution or the laws of the United States. The Due Process Clause of the United States Constitution does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner. Sandin v. Conner, 515 U.S. 472, 478 (1995). Based on the foregoing, it is recommended that petitioner's petition for a writ of habeas corpus be DISMISSED.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus By A Person In State Custody filed by petitioner MIGUEL ANGEL GONZALEZ be DISMISSED.
INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by the most efficient means available.IT IS SO RECOMMENDED.