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Ortiz v. Marshall

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


April 2, 2010

ROBERT A. ORTIZ, PETITIONER,
v.
JOHN C. MARSHALL, RESPONDENT.

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

ORDER

Petitioner purports to have filed a petition pursuant to 28 U.S.C. § 2254. However, therein petitioner challenges a putative "illegal denial of contact visitation," identifying it as a "condition of confinement," that he contends is a denial of his due process and equal protection, i.e., Fourteenth Amendment, rights. Petition, pp. 2, 4. However:

Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action.

Muhammad v. Close, 540 U.S.749, 750, 124 S.Ct. 1303, 1304 (2004) (per curiam). See also, Overton v. Bazetta, 539 U.S. 126, 123 S. Ct. 2162 (2003) (wherein prisoners allege restrictions on prison visitation violate their First, Eighth and Fourteenth Amendment rights in a § 1983 action).

This action, therefore, is properly construed as a civil rights complaint, pursuant to 42 U.S.C. §1983. So construed, therefore, petitioner, as plaintiff, is a state prisoner proceeding pro se who has filed a civil rights action pursuant to 42 U.S.C. § 1983. However, as petitioner filed it as a habeas petition, it must be dismissed for petitioner to conform with the requirements of filing a § 1983 complaint. Complaints are required to set forth (1) the grounds upon which the court's jurisdiction rests, (2) a short and plain statement of the claim showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. Rule 8 requires only "sufficient allegations to put defendants fairly on notice of the claims against them." McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Within this filing, petitioner/plaintiff has not named any defendants nor linked any named party to an alleged deprivation of his constitutional rights. The petition will be dismissed but petitioner/plaintiff will be granted leave to amend to proceed in this matter under § 1983.

In addition, if petitioner elects to proceed as plaintiff, he must file a sufficient request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The certificate portion of the request which must be completed by plaintiff's institution of incarceration has not been filled out in the present request. Also, plaintiff has not filed a certified copy of his prison trust account statement for the six month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2). Plaintiff will be provided the opportunity to submit a completed in forma pauperis application and a certified copy in support of his application.

Accordingly, IT IS HEREBY ORDERED that: 1. The petition is dismissed with leave granted for petitioner, as plaintiff, to file a civil rights action pursuant to 42 U.S.C. § 1983, within twenty-eight days;

2. In addition, should petitioner elect to proceed as plaintiff, he must submit, within twenty-eight days from the date of this order, a completed affidavit in support of his request to proceed in forma pauperis on the form provided by the Clerk of Court and the deficient pending request to proceed in forma pauperis, filed on March 15, 2010 (Docket # 2), is denied without prejudice;

3. The Clerk of the Court is directed to send petitioner/plaintiff both an appropriate form for filing a prisoner civil rights action in this district and a new Application to Proceed In Forma Pauperis By a Prisoner; and

4. In addition to a civil rights complaint, petitioner, as plaintiff, shall submit, within twenty-eight days from the date of this order, a certified copy of his prison trust account statement for the six month period immediately preceding the filing of the complaint. Plaintiff's failure to comply with any portion of this order will result in a recommendation that this action be dismissed without prejudice.

5. Once the appropriate filings have been made, the Clerk of the Court will be directed to re-designate this action as one brought pursuant to 42 U.S.C. § 1983.

20100402

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