(HC) Payne v. Virga, No. 2:2010cv03016 - Document 7 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 12/7/10 recommending that re 1 Petition for Writ of Habeas Corpus filed by Gerald J. Payne. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. The 2 Motion to Proceed IFP is GRANTED.. (Dillon, M)
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(HC) Payne v. Virga Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GERALD J. PAYNE 12 No. CIV S-10-3016 GEB GGH Petitioner, 11 vs. 13 TIMOTHY VIRGA ORDER & FINDINGS AND RECOMMENDATIONS 14 Respondents. / 15 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of 16 17 habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma 18 pauperis. 19 Examination of the in forma pauperis application reveals that petitioner is unable 20 to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be 21 granted. See 28 U.S.C. § 1915(a). 22 Petitioner seeks habeas relief regarding a Rules Violation Report (RVR) for 23 battery on a guard that led to a 90 day suspension of visiting privileges nearly a year ago. 24 Petition seeks the court to force the prison to release a videotape of the incident that allegedly 25 shows petitioner’s innocence. 26 The purpose of a petition for writ of habeas corpus brought pursuant to 28 U.S.C. 1 Dockets.Justia.com 1 § 2254 is to challenge the legality of confinement. As petitioner is not challenging the legality of 2 confinement in this petition, nor was he ever subject to confinement from the underlying RVR, 3 the petition must be dismissed. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Petitioner’s application to proceed in forma pauperis is granted. 6 IT IS HEREBY RECOMMENDED that the petition be dismissed. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 9 days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served and filed within fourteen days after service of the objections. The parties are 13 advised that failure to file objections within the specified time may waive the right to appeal the 14 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: December 7, 2010 16 /s/ Gregory G. Hollows 17 UNITED STATES MAGISTRATE JUDGE 18 GGH: AB 19 payn3016.dis 20 21 22 23 24 25 26 2