Opinion
No. C 03-0061 WHA (PR)
February 25, 2003
JUDGMENT
Pursuant to the court's order entered today, a judgment of dismissal without prejudice is hereby entered.
ORDER OF DISMISSAL
This pro se case January 6, 2003. On that same day the court notified petitioner that he had not paid the filing fee nor applied for leave to proceed in forma pauperis. A copy of the court's form for applications to proceed in forma pauperis was provided with the notice, along with a return envelope. Petitioner was informed that if he did not either pay the fee or file the application within thirty days the case would be dismissed. No response has been received.
The document with which petitioner commenced this case is captioned "Petition for Relief." The clerk understandably has classified the case as a petition for a writ of habeas corpus, and accordingly informed petitioner that if he chose to pay the filing fee, the fee due would be five dollars. However, in the body of the document petitioner asks "for relief from the requirements of Government Code, Section 945.4." This appears to be a reference to section 945.4 of the California Government Code, which bars suits against a "public entity" unless a tort claim has been presented and acted upon. One of the attachments to the petition, a letter from the Victim Compensation and Government Claims Board, informs him that the Board intended to deny his claim as untimely. It informs him that his next recourse after denial would be to file "a petition in court for relief from the requirements of Government Code Section 945.4." The present petition would appear to be an attempt to do just that. Relief from a state tort claim statute is not something which can be granted in a federal habeas proceeding. In short, it appears petitioner may have filed in the wrong court, i.e., federal rather than state court.
In the document petitioner describes injuries he sustained from what he contends was an excessive use of force by police officers in apprehending him, force which he contends violated his Fourth Amendment rights. Therefore the document presently classified as a habeas petition could be treated as a complaint under section 1983, as it alleges a violation of constitutional rights, although the relief requested — "relief" from the operation of section 945.4 — could not be granted on the basis of this pleading. But even if the document were amended to request relief available under section 1983, the fact would remain that petitioner has not paid the filing fee nor applied for leave to proceed in forma pauperis.
This case is therefore DISMISSED without prejudice. The clerk shall close this file. IT IS SO ORDERED.