The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff, a state prisoner proceeding without counsel, has filed a civil complaint which appears to challenge his conviction; such challenge is properly presented as a petition for writ of habeas corpus. In addition, plaintiff has not paid a filing fee or requested leave to proceed in forma pauperis.
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b)(1),(2).
Plaintiff asserts that he "wants an acquittal," and his statement of facts relates entirely to his underlying trial, legal representation and conviction. (Dkt. No. 1 (Cmplt.) at 3.) A challenge to a conviction must be brought pursuant to a petition for writ of habeas corpus after exhaustion of all available state court remedies. 28 U.S.C. § 2254. In contrast, federal claims challenging conditions of confinement must be brought in a civil complaint after exhaustion of all administrative remedies. 42 U.S.C. § 1983.
Because it is unclear whether plaintiff should maintain this action pursuant to a civil rights complaint or a petition for writ of habeas corpus, and because the filing costs associated with each pleading are different ($5 to file a petition for writ of habeas corpus, $350 to file a civil complaint), the court will accord plaintiff the opportunity to file an amended pleading, and to pay the appropriate fee or file a completed application to proceed in forma pauperis.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to send plaintiff the forms for filing a civil rights complaint and a habeas corpus petition (plaintiff must make a choice and file only one completed pleading), and the form entitled "Application to Proceed In Forma Pauperis By a Prisoner;"
2. On or before March 4, 2011, plaintiff shall file either a habeas corpus petition pursuant to 28 U.S.C. § 2254, or an amended civil rights complaint pursuant to 42 U.S.C. § 1983; in addition, together with filing of his new pleading, plaintiff shall pay the appropriate filing fee or submit a completed application to proceed in forma pauperis; and
3. Failure to comply with this order may result in the dismissal of this action. SO ORDERED.
© 1992-2011 VersusLaw ...