IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 16, 2008
ODIS JAMES YOUNG, II, PETITIONER,
NEW FOLSOM LITIGATION DEPARTMENT, RESPONDENTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that he was involved in an altercation with another inmate. Petitioner alleges that prison officials violated regulations contained in Title 15 by failing to charge the other inmate with a rules violation.
The purpose of a habeas corpus petition is to challenge the legality of a conviction or sentence. The purpose of a civil rights action is to challenge a condition of confinement. Because petitioner is not challenging the legality of his conviction or sentence, the court construes this as a civil rights action.
Petitioner has not, however, filed an in forma pauperis affidavit or paid the required filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). Petitioner will be provided the opportunity either to submit the appropriate affidavit in support of a request to proceed in forma pauperis or to submit the appropriate filing fee.
In addition, petitioner must file his claims on a civil rights complaint form. Therefore, the petition is dismissed with leave to file a complaint. If petitioner files a complaint, it will most likely be dismissed for failure to state a colorable claim for relief. The claims, as pled in the petition, allege a violation of state law, if at all, rather than a violation of petitioner's constitutional rights.
In accordance with the above, IT IS HEREBY ORDERED that:
1. This action is construed as a civil rights action pursuant to 42 U.S.C. § 1983;
2. Petitioner shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis on the form provided by the Clerk of Court, or the appropriate filing fee; petitioner's failure to comply with this order will result in the dismissal of this action;
3. The petition is dismissed with thirty days to file a complaint; the Clerk of the Court is directed to send petitioner the form for a civil rights complaint; failure to file a complaint within that time will result in a recommendation of dismissal of this action.
4. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner.
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