Opinion
2:11-cv-00129-JCM-PAL.
February 7, 2011
ORDER
On January 24, 2011, the court received a handwritten document from plaintiff entitled "Petition for Affirmative Relief" (docket #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."). Moreover, plaintiff has failed to either pay the $350 filing fee or submit an application to proceed in forma pauperis on the court-approved forms.
The court also notes that, in its preliminary review, with respect to at least some claims, plaintiff appears to attempt to challenge his underlying conviction. 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). Further, 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.
Accordingly, plaintiff's action is dismissed without prejudice. If plaintiff wishes to pursue this matter, he should file a new action, with a new case number, and a complaint and/or petition for writ of habeas corpus on the court-approved forms. If he files a civil rights complaint, plaintiff should also include either the $350 filing fee or a completed application to proceed in forma pauperis on the court-approved form. The application must be accompanied by all required financial documentation, as described in the instructions for use of the form.
IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice. IT IS FURTHER ORDERED that the Clerk SHALL SEND to plaintiff the approved forms for filing a civil rights lawsuits under 42 U.S.C. § 1983.
IT IS FURTHER ORDERED that the Clerk shall send to plaintiff a blank petition for writ of habeas corpus form with instructions.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case.
DATED this 7th day of February, 2011.