(HC) Lacey v. Adams, No. 2:2011cv02946 - Document 4 (E.D. Cal. 2011)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/2/2011 ORDERING that petitioner's 2 request to proceed IFP is GRANTED; and the clerk to assign a district judge to this case; and RECOMMENDING that petitioner's 1 application for a writ of habeas corpus be dismissed. Assigned and Referred to Judge Morrison C. England, Jr.; Objections due within 21 days. (Yin, K)
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(HC) Lacey v. Adams Doc. 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BILLY J. LACEY, 11 12 13 14 Petitioner, vs. DERRAL ADAMS, Respondent. 15 16 17 No. CIV S-11-2946 CKD P ORDER and / FINDINGS & RECOMMENDATIONS Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. 18 Examination of the request to proceed in forma pauperis reveals petitioner is 19 unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is 20 granted. 28 U.S.C. § 1915(a). 21 Under Rule 4 of the Rules Governing § 2254 Cases, the court must conduct a 22 preliminary review of § 2254 habeas petitions and dismiss any petition where it plainly appears 23 that petitioner is not entitled to relief in this court. A writ of habeas corpus is available if the 24 court finds that petitioner is in custody in violation of federal law. 28 U.S.C. § 2254(a). 25 26 In his petition, petitioner does not allege that he is in custody in violation of federal law. Rather, he takes issue with his conditions of confinement. If petitioner wishes to 1 Dockets.Justia.com 1 challenge conditions of confinement, e.g. he is being subjected to cruel and unusual punishment 2 in violation of the Eighth Amendment, the correct course of action would be to commence an 3 action under 42 U.S.C. § 1983. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). 4 Petitioner is warned, however, that if he commences a § 1983 action, he will be required to pay 5 the $350 filing fee, although he will be allowed to pay it in installments. 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. Petitioner’s request for leave to proceed in forma pauperis (#2) is granted; and 8 2. The Clerk of the Court assign a district court judge to this case. 9 IT IS HEREBY RECOMMENDED that petitioner’s application for writ of habeas 10 corpus be dismissed. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 13 one days after being served with these findings and recommendations, petitioner may file written 14 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 15 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 16 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 17 F.2d 1153 (9th Cir. 1991). 18 Dated: December 2, 2011 19 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 1 lace2946.dis 25 26 2