1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO UHURU, Case No.: 20cv0746 CAB (RBM)

12 Petitioner,

ORDER:

13 v. (1) GRANTING MOTION TO 14 PEOPLE OF THE STATE OF

PROCEED IN FORMA PAUPERIS;

CALIFORNIA, et al., 15 and Respondents. 16 (2) DISMISSING CASE WITHOUT 17 PREJUDICE AND WITH LEAVE TO

AMEND

18 19 Petitioner, a prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus 20 pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District 21 of California on April 3, 2020. (ECF No. 1.) The case was transferred to this Court on 22 April 20, 2020. (ECF No. 4). On April 28, 2020, the Court dismissed the action without 23 prejudice and with leave to amend. (ECF No. 6). Petitioner was given until July 3, 2020, 24 to either pay the $5.00 filing fee or move to proceed in forma pauperis and file a First 25 Amended Petition that cured the pleading deficiencies outlined in the Court’s April 28, 26 2020 Order. Id. On June 19, 2020, Petitioner filed a First Amended Petition (“FAP”)and a 27 motion to proceed in forma pauperis. (ECF Nos. 7-8.) 28 / / / 1 MOTION TO PROCEED IN FORMA PAUPERIS 2 Petitioner has submitted a trust account statement with his motion to proceed in 3 forma pauperis which reflects that he has no funds in his trust account at the facility in 4 which he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the 5 Court GRANTS Petitioner’s application to proceed in forma pauperis. The Clerk of the 6 Court shall file the Petition for Writ of Habeas Corpus without prepayment of the filing 7 fee. 8 FAILURE TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS 9 Upon review of the FAP, it appears to the Court that a Petition for Writ of Habeas 10 Corpus brought pursuant to § 2254 is not the proper vehicle for the claims Petitioner 11 presents. Petitioner lists various problems he claims he is facing in prison. Specifically, 12 Petitioner claims his First, Fifth, Eighth and Fourteenth Amendment rights are being 13 violated by prison officials. (FAP., ECF No. 7 at 6-9.) Petitioner’s claims are not 14 cognizable on habeas because they do not challenge the constitutional validity or duration 15 of Petitioner’s confinement. See 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 16 500 (1973); Heck v. Humphrey, 512 U.S. 477, 480-85 (1994); Nettles v. Grounds, 830 17 F.3d 922, 935 (9th Cir. 2016). 18 Challenges to the fact or duration of confinement are brought by petition for a writ 19 of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement 20 are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser, 411 U.S. at 21 488-500; Nettles, 830 F.3d at 935. When a state prisoner is challenging the very fact or 22 duration of his physical imprisonment, and the relief he seeks is a determination that he is 23 entitled to immediate release or a speedier release from that imprisonment, his sole 24 federal remedy is a writ of habeas corpus. Preiser, 411 U.S. at 500; Nettles, 830 F.3d at 25 935. On the other hand, a § 1983 action is a proper remedy for a state prisoner who is 26 making a constitutional challenge to the conditions of his prison life, but not to the fact or 27 length of his custody. Preiser, 411 U.S. at 500; Nettles, 830 F.3d at 935. Petitioner 28 / / / 1 || challenges the conditions of his prison life, but not the fact or length of his custody. Thus, 2 || Petitioner has not stated a cognizable habeas claim pursuant to § 2254. 3 Rule 4 of the Rules Governing Section 2254 Cases provides for summary 4 || dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any 5 exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 6 28 U.S.C. foll. § 2254. Here, it is plain from the petition that Petitioner is not presently 7 entitled to federal habeas relief because he has not alleged that the state court violated his 8 || federal rights. 9 CONCLUSION 10 The Court GRANTS Petitioner’s motion to proceed in forma pauperis and 11 DISMISSES this case without prejudice and with leave to amend. If Petitioner wishes to 12 || challenge the validity of his criminal conviction and proceed with this case he must, no 13 than October 18, 2020, file a Second Amended Petition that cures the pleading 14 || deficiencies outlined in this Order. If Petitioner wishes to challenge the conditions of his 15 || confinement, he must file a new civil rights action pursuant to 42 U.S.C. § 1983 which 16 || will be given a new case number. The Clerk of Court is directed to mail Petitioner a Pro 17 ||Se Prisoner Forms Packet together with a copy of this Order. 18 IT IS SO ORDERED. 19 Dated: August 13, 2020 (6 20 Hon. Cathy Ann Bencivengo 21 United States District Judge 22 23 24 25 26 27 28