1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NOEL RODRIGUEZ, Case No.: 19cv1355 GPC (BGS)

12 Petitioner, ORDER DENYING MOTION FOR 13 v. STAY AND ABEYANCE OF PETITIONER’S CLAIMS 14 MONTGOMERY, Warden,

15 Respondent. [Dkt. No. 5.] 16 17 On July 19, 2019, Petitioner, a state prisoner proceeding pro se, filed a Petition for 18 Writ of Habeas Corpus pursuant to

, together with a request to proceed 19 in forma pauperis. (Dkt. Nos. 1, 2.) On July 26, 2019, the Court granted Petitioner’s 20 motion to proceed in forma pauperis and dismissed the case with leave to amend. (Dkt. 21 No. 3.) In its Order, the Court noted that Plaintiff’s claims, alleging improper medical 22 and psychiatric care, cannot be brought under a Petition for Writ of Habeas Corpus 23 pursuant to

because he does not challenge the constitutional validity or 24 duration of his confinement. See 28 U.S.C. 2254(a); Preiser v. Rodriguez,

, 25 500 (1973) (When a state prisoner is challenging the very fact or duration of his physical 26 imprisonment, and the relief he seeks is a determination that he is entitled to immediate 27 release or a speedier release from that imprisonment, his sole federal remedy is a writ of 28 habeas corpus.); Heck v. Humphrey,

(1994). Petitioner contends 1 federal constitutional rights are being violated by prison officials because he is not 2 || being given proper medical and psychiatric care. (Dkt. No. 1, Pet. at 18-21, 27-68.) The 3 ||instant motion to stay claims pending exhaustion relates to exhausting his administrative 4 ||remedies concerning his medical care issues. Based on the initial filing and motion to 5 || stay, Petitioner is challenging the conditions of his confinement and his claims must be 6 || brought pursuant to the Civil Rights Act,

. See Preiser,

- 7 A § 1983 action is a proper remedy for a state prisoner who is making a 8 || constitutional challenge to the conditions of his prison life, but not to the fact or length of 9 custody. Id. at 499; McIntosh v. United States Parole Comm’n,

, 811-12 10 || 10th Cir. 1997). In its prior order, the Court dismissed the case for failing to state a 11 |}cognizable claim on habeas corpus and directed that if Petitioner wishes to challenge the 12 || conditions of his confinement, he must file a new civil rights complaint pursuant to 42 13 ||U.S.C. § 1983 which will be given a new case number. Petitioner has failed to comply 14 || with the Court’s order to file a new civil rights complaint. Because Plaintiff is 15 challenging the conditions of his confinement, he MUST file a NEW civil rights 16 || complaint. 17 CONCLUSION 18 Accordingly, the Court DENIES Petitioner’s motion for stay and abeyance of his 19 ||claims. If Petitioner wishes to challenge the conditions of his confinement as alleged in 20 || his initial filing and in his motion for stay, he must file a new civil rights complaint 21 || pursuant to

which will be given a new case number. The Clerk of 22 Court is directed to mail Petitioner a blank civil rights complaint pursuant to 42 U.S.C. 23 1983 form together with a copy of this Order. The case shall remain dismissed. 24 IT IS SO ORDERED. 25 Dated: September 17, 2019 26 Hon. athe Cae 27 United States District Judge 28