Opinion
No. CIV S-06-0056 MCE GGH P.
February 3, 2006
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Petitioner alleges that although he is Mexican American, prison officials have classified him as a "white" inmate. As relief, petitioner requests correct ethnic classification.
The purpose of a habeas corpus action pursuant to 28 U.S.C. § 2254 is to challenge the legality of a conviction or sentence. The purpose of a civil rights action pursuant to 42 U.S.C. § 1983 is to challenge the conditions of confinement. Because petitioner is challenging a condition of confinement, the court construes this action as a civil rights action pursuant to 42 U.S.C. § 1983. Although the court has some doubt that an incorrect ethnic/racial classification, without more, violates a liberty interest, the petition is dismissed and petitioner is granted thirty days to file a civil rights complaint containing his claims. Following receipt of the complaint, the court will consider petitioner's application to proceed in forma pauperis.
In accordance with the above, IT IS HEREBY ORDERED that:
1. This action is construed as a civil rights action pursuant to 42 U.S.C. § 1983; the petition is dismissed and petitioner is granted thirty days to file a complaint; following receipt of the complaint, the court will consider petitioner's application to proceed in forma pauperis;
2. The Clerk of the Court is directed to send petitioner the form for a civil rights complaint pursuant to 42 U.S.C. § 1983.