IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 26, 2011
NATHAN TYLER BROGAN, PLAINTIFF,
PLACER COUNTY JUDICIAL SYSTEM, ET AL., DEFENDANTS.
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.
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