IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 28, 2010
MICHAEL CHESS, PETITIONER,
J. DOVEY, ET AL., RESPONDENTS.
Petitioner is a state prisoner proceeding pro se who has filed an action for writ of habeas corpus under 28 U.S.C. § 2254. Review of the petition, however, clearly shows that petitioner challenges conditions of confinement, not the fact or duration of his confinement. Where a prisoner challenges the conditions of his confinement, his claims are cognizable in a civil rights action rather than a habeas corpus action. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Therefore the court shall order the Clerk of Court to recharacterize this action as one proceeding under the federal civil rights statute, 42 U.S.C. § 1983.*fn1
Petitioner has also filed a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. However, the certificate portion of the request, which must be completed by plaintiff's institution of incarceration, has not been filled out. 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.
ITS IS HEREBY ORDERED that:
1. The Clerk of Court designate this case as a prisoner civil rights case under 42 U.S.C. § 1983.
2. Plaintiff shall submit, within thirty days from the date of this order, a completed information pauperis application and 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 this order will result in a recommendation that this action be 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.