Opinion
Civil Action No. 05-cv-02228-OES.
December 6, 2005
ORDER DIRECTING PLAINTIFF TO AMEND FILINGS
On October 24, 2005, Mr. Antonio Mercado submitted to the Court a document titled "Legal Lawsuit." Mr. Mercado, however, failed to identify the type of action that he intended to file and he failed either to pay the filing fee or submit an Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. The Court entered an Order on November 3 instructing Mr. Mercado to cure the deficiencies. Both a prisoner complaint packet and a 28 U.S.C. § 2241 habeas corpus packet were sent to Mr. Mercado, so he could decide the type of action he elects to submit and file the claims on the proper Court-approved form.
As opposed to choosing either a prisoner complaint form or a § 2241 form, Mr. Mercado completed both forms and submitted them to the Court. Mr. Mercado may not file both a prisoner complaint and a habeas application in the same action. Therefore, Mr. Mercado will be directed to decide whether he desires to file a prisoner complaint or a habeas application and amend the action accordingly by filing only one of the forms but not both. Therefore, it is
ORDERED that Mr. Mercado shall amend the action and file either a Prisoner Complaint or an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, but not both. It is
FURTHER ORDERED that the Clerk of the Court mail to Mr. Mercado, together with a copy of this Order, two copies of the following forms: a Prisoner Complaint; and an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. It is
FURTHER ORDERED that if Mr. Mercado fails to file either a Prisoner Complaint or a habeas Application, but not both, within thirty days of the date of this Order the action will be dismissed without further notice and without prejudice.