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Nguon v. Virga

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


July 13, 2010

HUNG DUONG NGUON, PLAINTIFF,
v.
VIRGA, DEFENDANTS.

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

ORDER

Plaintiff is a state prisoner proceeding pro se with an action that has been filed using a form for a petition for a writ of habeas corpus. Plaintiff alleges that the appeals coordinators at his facility are improperly discarding inmate appeals.

The purpose of a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 is to challenge the legality of confinement. The purpose of a civil rights action is to challenge the conditions of confinement. Because this action challenges conditions of confinement, the court construes it as a civil rights action. Accordingly, the petition is dismissed with leave to file a civil rights complaint.

The certificate portion of plaintiff's in forma pauperis application which must be completed by plaintiff's institution of incarceration has not been filled out. Plaintiff will be provided the opportunity to submit a completed in forma pauperis application and a certified copy in support of his application.

In accordance with the above, IT IS HEREBY ORDERED that:

1. This action is construed as a civil rights action; the petition is dismissed with twenty-eight days to file a civil rights complaint;

2. The Clerk of the Court is directed to send plaintiff the form for a civil rights complaint used in this district;

3. Plaintiff's motion to proceed in forma pauperis (Doc. 2) is denied;

4. Plaintiff shall 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;

5. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner used in this district;

6. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed without prejudice.

20100713

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