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Young v. Kyte

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 2, 2010

ALBERT YOUNG, PETITIONER,
v.
D. KYTE, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a habeas corpus petition combined with a civil rights action. Petitioner cannot proceed with both a habeas corpus petition and a civil rights action in one action. Because the gravaman of this action concerns petitioner's claims regarding prison conditions, the court construes this as a civil rights action.

Plaintiff has filed an application to proceed in forma pauperis. However, he did not file his application on the form used by this district. Use of the form assists plaintiff to establish and the court to evaluate plaintiff's in forma pauperis status in light of 28 U.S.C. § 1915 (b)(1) and (2). Accordingly, plaintiff's application will be dismissed and plaintiff will be provided the opportunity to submit the application on the appropriate form. Plaintiff is cautioned that he must also provide a certified copy of his prison trust account statement for the six month period immediately preceding the filing of his complaint.

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. Plaintiff's application to proceed in forma pauperis (no. 2) is dismissed without prejudice;

3 The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner; and

4. Plaintiff shall submit, within twenty-eight days from the date of this order, a completed application to proceed in forma pauperis. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed without prejudice.

20100202

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