Opinion
No. CIV S-02-2765 RRB EFB P.
November 20, 2007
ORDER
Petitioner is a state prisoner proceeding in propria persona with this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 7, 2007, petitioner filed a letter in which he requests that this court issue a temporary restraining order delaying his impending transfer to a prison in another state. Petitioner's request is essentially a challenge to the conditions of his confinement and may not be addressed in this habeas corpus action.
When a prisoner challenges the fact or duration of his custody and a determination of his action may result in plaintiff's entitlement to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990). The proper mechanism for raising a federal challenge to conditions of confinement, however, is through a civil rights action pursuant to 42 U.S.C. § 1983. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Petitioner is informed that he may file a civil rights complaint pursuant to 42 U.S.C. § 1983 if he wishes to challenge his transfer to another prison. Petitioner is cautioned that if he chooses to file a civil rights action it is probable that he will incur a liability in the amount of the $350.00 filing fee, which amount will be collected from his prison trust account in full or in installments. See 28 U.S.C. §§ 1914(a), 1915(a).
Good cause appearing, IT IS HEREBY ORDERED that petitioner's September 6, 2007, request for a temporary restraining order is denied without prejudice to its renewal in a civil rights action pursuant to 42 U.S.C. § 1983.