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Nguon v. Tim

United States District Court, E.D. California
Dec 6, 2010
No. CIV S-10-2714 EFB P (E.D. Cal. Dec. 6, 2010)

Opinion

No. CIV S-10-2714 EFB P.

December 6, 2010


ORDER


Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Therefore, the request is granted.

Petitioner states that a number of correctional officers stripped him naked outside on a sub-freezing day, poured ice water on him, and let him remain outside despite his pleas to go inside or be given clothes or a blanket.

A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution. . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing § 2254 Cases. Because petitioner's claim does not challenge his custody, it is not appropriate for a § 2254 action. Therefore, this case is dismissed. See Rule 4, Rules Governing § 2254 Cases. Petitioner may wish to file a lawsuit under 42 U.S.C. § 1983 instead.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's request to proceed in forma pauperis is granted; and

2. This action is dismissed.

Dated: December 6, 2010.


Summaries of

Nguon v. Tim

United States District Court, E.D. California
Dec 6, 2010
No. CIV S-10-2714 EFB P (E.D. Cal. Dec. 6, 2010)
Case details for

Nguon v. Tim

Case Details

Full title:HUNG DUONG NGUON, Petitioner, v. TIM V. VIRGA, Respondent

Court:United States District Court, E.D. California

Date published: Dec 6, 2010

Citations

No. CIV S-10-2714 EFB P (E.D. Cal. Dec. 6, 2010)