Opinion
3:10-cv-00486-ECR-RAM.
October 25, 2010
ORDER
On August 8, 2010, the court received a handwritten document from plaintiff styled "Civil Rights Complaint, Notice of Intent" (docket #1-1). Such document is insufficient to initiate a civil rights action in this court. The Local Rules require plaintiffs appearing in pro se, such as this plaintiff, to file all of their complaints and petitions on the court's approved forms. LSR 2-1 ("[a] civil rights complaint filed by a person who is not represented by counsel shall be on the form provided by this court."). Accordingly, the Clerk shall not file this document (docket #1-1). Further, plaintiff has failed to submit a complete application to proceed in forma pauperis, with the required financial certificate and inmate trust account information.
The court also notes that, in its preliminary review, plaintiff appears to attempt to challenge his underlying conviction through a claim of ineffective assistance of counsel. However, when a prisoner challenges the legality or duration of his custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an allegedly unconstitutional conviction or imprisonment, "a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983." Id. at 488.
IT IS THEREFORE ORDERED that the Clerk SHALL SEND to plaintiff the approved forms for filing a civil rights lawsuits under 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis by a prisoner, as well as the document "Information and Instructions for Filing a Motion to Proceed In Forma Pauperis." Within thirty (30) days from the date of entry of this order, plaintiff SHALL FILE a completed and signed complaint along with the application to proceed in forma pauperis on the form provided by this court, as well as all requisite financial information, if he is unable to pay the filing fee. Plaintiff's failure to do so may result in the immediate dismissal of the entire action.
IT IS FURTHER ORDERED that the Clerk shall send to plaintiff a blank petition for writ of habeas corpus form with instructions.
DATED: October 25, 2010.