Opinion
No. C 02-2144 MMC (PR)
June 4, 2002
ORDER OF DISMISSAL
Latwahn McElroy ("petitioner"), currently incarcerated at Salinas Valley State Prison ("SVSP"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
Petitioner claims that he was discriminated against on the basis of his religion. Specifically, petitioner alleges that in the process of his move to a different part of the prison, some of his property with religious significance was damaged and confiscated. Petitioner seeks money damages, declaratory relief, and an injunction requiring the return of his property. Petitioner's claim thus implicates the conditions of his confinement but not the fact or duration of his custody. Such claim cannot form the basis of habeas relief. The preferred practice in this Circuit is that challenges to conditions of confinement be brought in a civil rights complaint, not in a habeas petition. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (holding civil rights action is proper method of challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890, 891-92 n. 1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and conditions of confinement must be brought in civil rights complaint); cf. Boyce v. Ashcroft, 251 F.3d 911, 914 (holding "[p]risoners who raise constitutional challenges to other prison decisions — including transfers to administrative segregation, exclusion from prison programs, or suspension of privileges, e.g. conditions of confinement, must proceed under Section 1983 or Bivens" and not under habeas statute), judgment vacated as moot, 268 F.3d 953 (10th Cir. 2001); Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997) (adopting bright-line rule for resolving whether action must be filed as habeas petition or civil rights complaint: if a favorable determination would not automatically entitle the prisoner to accelerated release, the proper vehicle is an action under 42 U.S.C. § 1983). As a result, petitioner's claims should be brought in a civil rights complaint, not in a petition for a writ of habeas corpus.
The petition for a writ of habeas corpus is DISMISSED without prejudice to petitioner's raising his claims under 42 U.S.C. § 1983 in a civil rights action. In light of this dismissal, the application to proceed in forma pauperis is DENIED and no fee is due.
All pending motions are terminated. The clerk shall close the file.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
X Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.IT IS ORDERED AND ADJUDGED The petition for a writ of habeas corpus is DISMISSED without prejudice to petitioner's raising his claims under 42 U.S.C. § 1983 in a civil rights action. In light of this dismissal, the application to proceed in forma pauperis is DENIED and no fee is due. All pending motions are TERMINATED.