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Orozco v. Brown

United States District Court, E.D. California

August 27, 2014

HERNAN OROZCO, Plaintiff,
v.
EDMUND G. BROWN, JR., Defendant.

ORDER

CAROLYN K. DELANEY, Magistrate Judge.

Plaintiff is a civil detainee confined at Coalinga State Hospital ("CSH") and proceeding pro se.[1] He seeks a writ of mandamus compelling state officials to relocate him to another state hospital, where he is not at risk of contracting Valley Fever. He asks this court to "compel compliance with" the June 24, 2013 order issued in Plata v. Brown, No. 01-cv-1351 TEH (N.D. Cal.), granting plaintiffs' Motion for Relief Re: Valley Fever at Pleasant Valley and Avenal State Prisons.[2]

Plaintiff is not a member of the Plata class, however. Nor is plaintiff a class member in Coleman v. Brown, No. 2:90-cv-0520 LKK JFM (E.D. Cal.), which concerns the constitutional adequacy of CDCR's inmate mental health care. (See ECF No. 1.) Thus the court considers his individual request for relief in the form of a transfer.

Though plaintiff has styled his complaint as a petition for writ of mandamus, it is better construed as a civil rights complaint under 42 U.S.C. § 1983 for injunctive relief.[3] See Layton v. Knipp, No. 2:13-cv-1618 AC P (E.D. Cal.), 2013 WL 5348153, *2 ("Because the court cannot grant the mandamus relief sought [injunction preventing plaintiff's transfer to prison where Valley Fever was present], plaintiff's complaint is better construed as a civil rights complaint under 42 U.S.C. § 1983 for injunctive relief.") Plaintiff effectively asserts that, due to his "age, health status, and/or ethnicity, " his confinement at CSH, in an area "prone to the transmission of Valley Fever, " constitutes an excessive risk to his health and safety.[4]

Plaintiff has not, however, filed an in forma pauperis affidavit or paid the required filing fee of $350.00 plus the $50.00 administrative fee.[5] See 28 U.S.C. §§ 1914(a), 1915(a). Plaintiff will be provided the opportunity either to submit the appropriate affidavit in support of a request to proceed in forma pauperis or to submit the required fees totaling $400.00.

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

1. The Clerk of Court is directed to redesignate this action as a prisoner civil rights action pursuant to 42 U.S.C. § 1983;

2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner; and

3. Plaintiff shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis on the form provided by the Clerk of Court, or the required fees in the amount of $400.00; plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed.


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