Opinion
No. CIV S-08-2005 JAM KJM P.
October 22, 2008
ORDER
Petitioner has filed an application for writ of habeas corpus. However, petitioner challenges his conditions of confinement, not the fact of or duration of his imprisonment, and a writ of habeas corpus can only be granted upon a finding that a prisoner is in custody in violation of the Constitution. 28 U.S.C. § 2254. Because petitioner's claims are not appropriately raised in a federal habeas action, the court will recommend that this matter be dismissed. If plaintiff wishes to pursue his claims, he may wish to consider filing an action under 42 U.S.C. § 1983. Plaintiff is cautioned, however, that if he elects to file a § 1983 action, he will be charged the $350.00 filing fee.
If petitioner qualifies for in forma pauperis status, he will be allowed to pay the filing fee in instalments.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).