Opinion
Civil Action No. 05-cv-02289-MSK-PAC.
May 30, 2006
ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE
THIS MATTER comes before the Court on the Magistrate Judge's Recommendation (#35). No party has timely objected to the Recommendation. Having considered the same, the Court
FINDS and CONCLUDES that:
The Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 challenging his classification as a sex offender. On March 1, 2006, Magistrate Judge Boland ordered the Plaintiff to file an Amended Complaint. He concluded that while some claims were properly characterized as § 1983 claims, others were more properly characterized as habeas corpus claims under 28 U.S.C. § 2241. Therefore, the Magistrate Judge also directed the Plaintiff to file a separate application for habeas corpus relief under 28 U.S.C. § 2241 if he wishes to pursue such claims.
The Plaintiff filed an Amended Complaint, as directed. However, in this same action, he also filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (#27). In addition, he filed a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (#26).
Magistrate Judge Coan recommends that the § 2254 habeas application be denied, without prejudice, so that the Plaintiff can commence a separate habeas corpus action under 28 U.S.C. § 2241. She also recommends that the Plaintiff's motion under 28 U.S.C. § 1915 be denied, without prejudice. The Plaintiff has not objected to the Recommendation. The Recommendation is neither clearly erroneous nor contrary to law.
IT IS THEREFORE ORDERED that:
(1) The Recommendation (#35) is ADOPTED.
(2) The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (#27) and the Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (#26) are DENIED, without prejudice.
(3) If he so desires, the Plaintiff may commence a separate habeas corpus action pursuant to 28 U.S.C. § 2241 through the filing of an "Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241."
(4) The sole claims remaining in this action are those set forth in the Plaintiff's Amended Complaint (#21) filed pursuant to 42 U.S.C. § 1983.