United States District Court, S.D. Texas, McAllen Division
REPORT AND RECOMMENDATION
SCOTT HACKER, UNITED STARES MAGISTRATE JUDGE
Jerry Hernandez, a state prisoner proceeding pro se,
has filed a habeas corpus petition pursuant to 28 U.S.C.
§ 2254. (Dkt. No. 1).
review of his petition shows that Petitioner does not
challenge any aspect of his conviction and sentence.
Petitioner states that he was assaulted by gang members,
resulting in numerous injuries. (Dkt. No. 1 at 6). Petitioner
has requested that he be placed in a safekeeping facility.
(Id.). Petitioner asserts that he is still currently
in a unit with the same gang members that assaulted him and
seeks relief in the form of being removed from his current
unit. (Id.). Petitioner also seeks monetary damages,
which he cannot obtain through federal habeas corpus
proceedings. See Heck v. Humphrey, 512 U.S. 477, 481
Court concludes that Petitioner's claims are not
cognizable under § 2254, and instead should have been
brought pursuant to 42 U.S.C. § 1983. "[A] §
1983 action is a proper remedy for a state prisoner who is
making a constitutional challenge to the conditions of his
prison life, but not to the fact or length of his
custody." Preiser v. Rodriguez, 411 U.S. 475,
499 (1973). If a favorable determination "would not
automatically entitle [the prisoner] to accelerated release,
the proper vehicle is a § 1983 suit." Carson v.
Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (internal
citations omitted); see Kincade v. Sparkman, 117
F.3d 949, 952 (6th Cir. 1997).
foregoing reasons, the undersigned recommends that
Petitioner's § 2254 petition be dismissed without
prejudice. If the District Court dismisses this action
without prejudice, Petitioner is free to refile his claims as
a § 1983 suit. The Clerk of this Court shall mail
Petitioner the appropriate § 1983 forms.
undersigned will not assume at this time that Petitioner
wishes to commit himself to paying the applicable civil
filing fee. If Petitioner chooses to refile his claims as a
§ 1983 suit, he is noticed that he will be required to:
(1) pay the $ 400 filing fee to the Clerk of the Court by
submitting a money order, with the above case number written
on it, payable to the United States District Clerk, P.O. Box
5059, McAllen, Texas 78502;
(2) or, file an application to proceed in forma
pauperis ("IFP"), which must be accompanied by
a certified copy of Petitioner's inmate trust fund
account statement for the 6-month period immediately
preceding the filing of this petition. See 28 U.S.C.
is noticed that the Prison Litigation Reform Act
("PLRA") requires prisoners proceeding IFP to pay
an initial partial filing fee for all civil actions and
appeals when funds exist in the prisoner's trust fund
account. See 28 U.S.C. § 1915(b)(1). The PLRA
also requires that the full amount of the filing fee be
withdrawn from the plaintiffs trust fund account in periodic
installments. A prisoner who chooses to sue or appeal IFP
remains responsible for the entire filing fee.
payment of all or any part of the filing fee will not prevent
dismissal of the complaint if it is frivolous, malicious,
fails to state a claim upon which relief may be granted, or
seeks monetary relief from a defendant who is immune from
such relief. If the case is dismissed on any of these grounds
before the payment of the entire filing fee, the plaintiff
must still pay the entire filing fee. When a prisoner has
three or more prior actions or appeals dismissed for being
frivolous, malicious, or failing to state a claim upon which
relief may be granted, the prisoner will be barred from
bringing any more actions or appeals IFP unless he is
imminent danger of serious physical injury. 28 U.S.C. §
careful review of the record and relevant law, the
undersigned recommends that the habeas corpus petition (Dkt.
No. 1) be DISMISSED without prejudice.
recommended that the District Court DENY a