Tatum v. Baca

Full title: DEWAYNE TATUM, Petitioner, v. ISIDRO BACA, et al., Respondents.

Court: UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Date published: Feb 3, 2014

3:13-cv-00640-LRH-WGC (D. Nev. Feb. 3, 2014)

Opinion

3:13-cv-00640-LRH-WGC

02-03-2014

DEWAYNE TATUM, Petitioner, v. ISIDRO BACA, et al., Respondents.

LARKY R. HICKS

ORDER

This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner has been released from the custody of the Nevada Department of Corrections.

Petitioner has filed a motion to proceed in forma pauperis. (ECF No. 1). Because the Court dismisses this action for failure to state a cognizable habeas corpus claim, the motion to proceed in forma pauperis is denied as moot.

Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief in the district court." Rule 4 of the Rules Governing 2254 Cases; see also, Hendricks v. Vasquez, 908 F.2d 490 (9^th Cir. 1990).

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). Federal habeas corpus law permits prisoners to challenge the validity of convictions under which they are "in custody." See 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923 (1989) (per curiam). A habeas petitioner is not "in custody" under a conviction after the sentence imposed for it has fully expired. Petitioner is no longer in the custody of the Nevada Department of Corrections as his sentence has expired. Petitioner's allegations appear to concern a due process claim stemming from the adjudication of a prison disciplinary hearing. Plaintiff seeks monetary relief. Petitioner's claims are not appropriate for habeas corpus relief. Challenges to the conditions of confinement are more appropriately raised in civil rights action filed pursuant to 42 U.S.C. § 1983. See Badea v. Cox, 931 F.2d 573, 574 (9^th Cir. 1991); Crawford v. Bell, 599 F.2d at 891-92 (9^th Cir. 1979).

IT IS THEREFORE ORDERED that petitioner's motion to proceed in forma pauperis (ECF No. 1) is DENIED AS MOOT.

IT IS FURTHER ORDERED that the petition is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly.

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LARKY R. HICKS

UNITED STATES DISTRICT JUDGE