1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 DANIEL CUNNINGHAM, Case No. 3:25-cv-00317-ART-CSD

6 Petitioner, ORDER v. 7 WARDEN BREITENBACH, et al., 8 Respondents. 9 10 Petitioner Daniel Cunningham, a pro se Nevada prisoner, commenced this 11 action by filing a Petition for Writ of Habeas Corpus under

(ECF 12 No. 1-1) as well as an Application for Leave to Proceed In Forma Pauperis ((“IFP”) 13 ECF Nos. 1, 3). After initial review under the Rules Governing 2254 Cases, the 14 Court dismisses the petition without prejudice and denies Cunningham’s IFP 15 Application. 16 I. IFP Application 17 A $5.00 filing fee is required to initiate a habeas action in a federal district 18 court.

(a); Judicial Conference Schedule of Fees. The Court may 19 authorize a person to begin an action without prepaying fees and costs if the 20 person demonstrates indigency.

; LSR 1-1, 1-2. Although 21 Cunningham submitted the required form, the supporting documents show he is 22 able to pay the $5 filing fee. Thus, he does not qualify for a fee waiver. The Court 23 therefore denies the IFP application. 24 II. Discussion 25 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas 26 petition and order a response unless it “plainly appears” that the petitioner is not 27 entitled to relief. See Valdez v. Montgomery,

(9th Cir. 2019). 28 The rule allows courts to screen and dismiss petitions that are patently frivolous, 1 vague, conclusory, palpably incredible, false, or plagued by procedural defects. 2 See Boyd v. Thompson,

(9th Cir. 1998). 3 Federal law provides two main avenues to relief for legal challenges to 4 incarceration: (1) a petition for writ habeas corpus,

, 2254, 2255; 5 and (2) a civil rights complaint,

. If success on a habeas claim 6 would not necessarily lead to a petitioner’s immediate or earlier release from 7 custody, the claim does not fall within “the core of habeas corpus.” Nettles v. 8 Grounds,

(9th Cir. 2016). Such claims must be brought, if at 9 all, under § 1983. If a prisoner is not challenging the fact of his confinement, but 10 instead the conditions under which he is being held, he must file a civil rights 11 complaint. Id. at 933 (“[P]risoners may not challenge mere conditions of 12 confinement in habeas corpus.”) (citing Crawford v. Bell,

, 891-92 13 (9th Cir. 1979)). 14 Cunningham alleges violations of his 14th Amendment rights asserting 15 that he has requested and been denied employment preventing him from earning 16 work time credits. ECF No. 1-1 at 6. His allegations are in the nature of prisoner 17 civil rights claims. If he were to succeed on this claim, it would only mean that 18 his conditions of confinement would change. Because success on Cunningham’s 19 claim would not lead to his immediate or speedier release, it does not fall in the 20 “core” of habeas and must be brought, if at all, in a civil rights complaint. 21 The Court declines to recharacterize Cunningham’s petition as a civil rights 22 complaint. When a habeas petition is amenable to conversion on its face, federal 23 courts may construe the petition to plead civil rights claims. Nettles,

935-36. However, habeas actions and prisoner civil rights cases “differ in a variety 25 of respects—that may make recharacterization impossible or, if possible, 26 disadvantageous to the prisoner compared to a dismissal without prejudice of his 27 petition for habeas corpus.”

In this case, the petition is not amenable to 28 conversion on its face based on the differences between habeas and civil rights 1 || cases and because it is not clear whether recharacterization would disadvantage 2 || Cunningham. The Court therefore dismisses the petition without prejudice and 3 || instructs the Clerk of the Court to send Cunningham the approved form and 4 || instructions for filing a

complaint. 5 III. Conclusion 6 It is therefore ordered that Petitioner Daniel Cunningham’s Application for 7 || Leave to Proceed In Forma Pauperis (ECF Nos. 1, 3) is denied. 8 It is further ordered that Petitioner Daniel Cunningham’s Petition for Writ 9 || of Habeas Corpus (ECF No. 1-1) is denied and this action is dismissed without 10 || prejudice. 11 It is further ordered that Petitioner is denied a certificate of appealability, 12 || as jurists of reason would not find the Court’s dismissal of the petition to be 13 || debatable or wrong. 14 It is further ordered that the Clerk of the Court will send to Cunningham 15 || (1) a copy of this order; and (2) the approved form and instructions for filing a 42 16 || U.S.C. § 1983 complaint. 17 It is further ordered that the Clerk of the Court is directed to enter final 18 || judgment accordingly and close this case. 19 DATED THIS Ist day of August, 2025. 20 21 Vd 22 Aros 23 ANNER TRAUM 24 UNITED STATES DISTRICT JUDGE 25 26 27 28