IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 17, 2011
SKEETER RAY EVANS, PLAINTIFF,
HIGH DESERT STATE PRISON, DEFENDANT.
Plaintiff is a prisoner confined at High Desert State Prison. In the action he seeks to commence, he is without counsel. It is not clear whether he intends to seek relief based on his conditions of confinement pursuant to 42 U.S.C. § 1983, or whether he seeks habeas relief pursuant to 28 U.S.C. § 2254. Plaintiff seeks damages and unspecified injunctive relief on the ground that he is unlawfully confined. Plaintiff has not paid the filing fee or sought leave to proceed in forma pauperis.
A suit under the civil rights statute is appropriate where a plaintiff challenges the conditions of his confinement after exhausting his administrative remedies. See Preiser v. Rodriguez, 411 U.S. 499 (1973). Challenges to the fact of conviction or the length of confinement, however, must be raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, after exhausting state judicial remedies. See id. at 500.
To proceed with a civil action under § 1983 or § 2554, a plaintiff
must pay the filing fee required by 28 U.S.C. § 1914(a) or request
leave to proceed in forma pauperis and submit the affidavit and trust
account statement required by 28 U.S.C. § 1915(a)(1).*fn1
Section 1915(a)(2) requires "a prisoner seeking to bring a
civil action without prepayment of fees or security therefor, in
addition to filing the affidavit filed under paragraph (1), shall
submit a certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the 6-month period
immediately preceding the filing of the complaint . . . , obtained
from the appropriate official of each prison at which the prisoner is
or was confined."
In order to proceed, plaintiff must either pay the appropriate filing fee or comply with the in forma pauperis statute. Furthermore, plaintiff must file either a complaint or a petition for writ of habeas corpus using the applicable form provided by the court.
Accordingly, it hereby is ORDERED that:
1. Plaintiff shall have 30 days from the date of this order to submit either a complaint or a petition for writ of habeas corpus.
2. Plaintiff shall have 30 days from the date of this order to either pay the appropriate filing fee or a completed application to proceed in forma pauperis; and
3. The Clerk shall send plaintiff (a) the court's form for filing a prisoner civil rights action, (b) the court's form for application for writ of habeas corpus, and (c) an application to proceed in forma pauperis by a prisoner.
4. Failure to comply with this order will result in a recommendation that this action be dismissed.