Casarez v. Rimmer

Full title: RICHARD CASAREZ, Petitioner, v. RICHARD RIMMER, et al., Respondents

Court: United States District Court, E.D. California

Date published: Aug 3, 2006

No. CIV S-05-2560 GEB KJM P (E.D. Cal. Aug. 3, 2006)

Opinion

No. CIV S-05-2560 GEB KJM P.

August 3, 2006

ORDER

KIMBERLY MUELLER, Magistrate Judge

Petitioner, a state prisoner at Rio Cosumnes Correctional Center, has filed documents styled "motion to dismiss" and "petition for writ of mandate," seeking dismissal of a case for vindictive prosecution. It appears that petitioner is seeking to file a petition for a writ of habeas corpus with regard to his trial and/or parole revocation proceedings in the state court. No other pleadings have been filed by the petitioner.

In order to commence a habeas, petitioner must file a petition on the form prescribed by this court, and must either pay the required filing fee or file an application requesting leave to proceed in forma pauperis. See Rules 2 3, Rules Governing Section 2254 Proceedings. The court will not issue any orders granting or denying relief until an action has been properly commenced. Therefore, petitioner's motion will be denied without prejudice. Petitioner will be provided the opportunity to file his petition, and to submit an application requesting leave to proceed in forma pauperis or to submit the appropriate filing fee.

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

1. Petitioner's December 12, 2005 motion to dismiss is denied without prejudice;

2. Petitioner's May 31, 2006 petition for writ of mandate is denied without prejudice;

3. Petitioner is granted thirty days from the date of service of this order to file a habeas petition; the petition must bear the docket number assigned this case; petitioner must file an original and two copies of the complaint. Petitioner shall also submit, within thirty days from the date of this order, the application to proceed in forma pauperis on the form provided by the Clerk of Court, or the filing fee in the amount of $5.00. Petitioner's failure to comply with this order will result in a recommendation that this matter be dismissed;

4. The Clerk of the Court is directed to send petitioner the court's form for filing a habeas petition by a state prisoner, and the appropriate application to proceed in forma pauperis by a prisoner, using the address of record provided by petitioner; and

5. The Clerk of the Court is directed to change the "nature of suit" designation from prisoner civil rights to general habeas corpus.