Opinion
No. CIV S-08-0451 LKK EFB P.
May 28, 2008
ORDER
Timothy Lee Bludworth is a state prisoner proceeding without counsel. He has filed a motion for equitable tolling, presumably in support of a habeas corpus petition. But he has not yet filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In his motion, Bludworth states that prison officials lost his petition for writ of habeas corpus filed with the California Supreme Court, making it impossible for him to file a timely petition. As noted, his motion is not accompanied by an application for a writ of habeas corpus and it is unclear from petitioner's motion whether he seeks to commence a habeas action or a civil rights action alleging a First Amendment violation of his right of access to the courts.
If petitioner is seeking habeas corpus relief from the fact or duration of his confinement, he must file an application pursuant to 28 U.S.C. § 2254 in the district embracing the county in which he was convicted. It appears from the exhibits attached to petitioner's motion that he was convicted in San Joaquin County, which is within the Eastern District of California. In that case, petitioner has filed in the proper venue. However, if petitioner is seeking damages for an alleged violation of his First Amendment right of access to the courts, petitioner must file a civil complaint pursuant to 42 U.S.C. § 1983 in the district in which the alleged harm giving rise to his cause of action took place. Petitioner is incarcerated in Salinas Valley State Prison, which is located in the Northern District of California. If plaintiff is seeking to pursue a civil rights action, he must file a civil complaint in the Northern District.
In any event, there is neither a complaint nor a habeas petition currently pending before the court and the court's subject matter jurisdiction has not been invoked.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner is granted 30 days from the date this order is served in which to file either a civil rights complaint pursuant to 42 U.S.C. § 1983 or an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254;
2. Failure to comply with this order will result in a recommendation that this action be dismissed; and
3. The Clerk of the Court is directed to mail to petitioner a form application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.