1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GILBERT ANTHONY TORRES, Case No.: 3:20-cv-0749-GPC-WVG

12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 14 LARIOS, Correctional Officer, et al., 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 18 Habeas Corpus pursuant to

. 19 FAILURE TO SATISFY THE FILING FEE REQUIREMENT 20 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 21 forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 22 $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the 23 case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. 24 FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS 25 In addition, it appears to the Court that a Petition for Writ of Habeas Corpus 26 brought pursuant to § 2254 is not the proper vehicle for the claims Petitioner presents. In 27 the Petition, Petitioner claims that correctional officers used excessive force on him while 28 he was in prison. (Pet., ECF No. 1 at 5.) Petitioner’s claims are not cognizable on 1 habeas because it they do not challenge the constitutional validity or duration of 2 ||confinement. See 28 U.S.C. 2254(a); Preiser v. Rodriguez,

(1973); 3 || Heck v. Humphrey,

(1994); Nettles v. Grounds,

, 935 4 || (9th Cir. 2016). 5 Challenges to the fact or duration of confinement are brought by petition for a writ 6 || of habeas corpus, pursuant to

; Nettles,

. When a state 7 || prisoner 1s challenging the very fact or duration of his physical imprisonment, and the 8 relief he seeks is a determination that he is entitled to immediate release or a speedier 9 ||release from that imprisonment, his sole federal remedy is a writ of habeas corpus. 10 || Preiser,

; Nettles,

. On the other hand, a § 1983 action is a 11 || proper remedy for a state prisoner who is making a constitutional challenge to the 12 || conditions of his prison life or constitutional challenges to his arrest, but not to the fact or 13 || length of his custody. Preiser,

; Nettles,

. It appears that 14 || Petitioner does not seek to challenge the fact or length of his custody. Thus, Petitioner 15 not stated a cognizable habeas claim pursuant to § 2254. 16 CONCLUSION 17 Because it appears that Petitioner does not seek to challenge the validity of his 18 || state court conviction, the Court DISMISSES the Petition without prejudice and with 19 || leave to amend. If Petitioner wishes to challenge the conditions of his prison life, he 20 || must file a civil complaint pursuant to 42 U.S.C. 1983 which will be given a separate 21 number. The Clerk of Court is directed to mail Petitioner a blank motion to 22 proceed in forma pauperis form and a blank Civil Complaint form pursuant to 42 23 ||U.S.C. § 1983 together with a copy of this Order. 24 IT IS SO ORDERED. 25 ||Dated: April 21, 2020 2 << 26 Hon. athe Cae 27 United States District Judge 28