Opinion
No. C 02-3017 MMC (PR), (Docket No. 2)
August 5, 2002
ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Timmy Tyson ("petitioner"), currently incarcerated at Pelican Bay State Prison, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has also applied for leave to proceed in forma pauperis.
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 his right to due process was violated when he received a "rules violation report" because he violated prison rules against using prison-supplied envelopes to mail letters for other inmates. Claims that discipline by prison officials was unconstitutional may be brought in a habeas petition where the discipline implicates the duration of confinement, as when prison officials assess a loss of time credits. See Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990), cert. denied, 498 U.S. 1126 (1991). Otherwise, the discipline implicates the conditions of confinement, but not the fact or duration of custody, and 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 Bada 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.l (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. Asheroft, 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). Petitioner does not allege any loss of time credits or any other aspect of the allegedly unconstitutional discipline that implicates the duration of his confinement or the validity of his conviction. Indeed, petitioner attaches a copy of the rules violation report, which clearly states that the discipline imposed was counseling and a reprimand. As petitioner's claim implicates the conditions of his confinement but not the fact or duration of his custody, the claim cannot form the basis of habeas relief. Petitioner's claims should be brought in a civil rights complaint, not in a petition for a writ of habeas corpus.
Accordingly, 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 the absence of funds in prisoner's trust account, the application to proceed in forma pauperis is GRANTED, and no fee is due.
All pending motions are terminated. The clerk shall close the file.
IT IS SO ORDERED.
Judgment in a Civil Case
[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. The application to proceed in forma pauperis is GRANTED, and no fee is due.
All pending motions are TERMINATED.