Opinion
No. CIV S-07-0829 GEB DAD P.
September 26, 2007
ORDER
On July 6, 2007, the court filed findings and recommendations recommending that this action be dismissed due to plaintiff's failure to file either a civil rights complaint or a habeas petition, and an application requesting leave to proceed in forma pauperis. On July 23, 2007, plaintiff filed his in forma pauperis application and a civil rights complaint. The certificate portion of the in forma pauperis form was not completed by the authorized officer and plaintiff did not submit a certified copy of his trust account statement. Moreover, the civil rights complaint filed by plaintiff is confusing. Plaintiff provides merely the following statement of claims: "I was at a program got into a fight with a person I fear for my life[.] [W]hen a person hit me I hit back for self defense[.]" (Compl. at 5.) In terms of relief, plaintiff requests: "get a nothere [sic] program get out of prison[.]" (Id.) The court is unable to determine if this action should proceed as a habeas or a civil rights action.
The court will provide plaintiff with a final opportunity to file either a second amended complaint or an amended habeas petition. If plaintiff is challenging a disciplinary action that resulted in the loss of good time credits or a criminal conviction, he should file a habeas petition. If plaintiff is challenging the conditions of his confinement and fears for his safety as a result, he should file a civil rights action and submit a new application for leave to proceed in forma pauperis. Plaintiff must have the authorized official complete the certificate portion or the application and plaintiff must submit a certified copy of his trust account statement. This procedure is required even if plaintiff has no funds in his trust account. Lastly, plaintiff is advised that he must name the appropriate defendant or respondent. "Fresno CA" is not an appropriate party.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations, filed on July 6, 2007, are vacated;
2. Plaintiff's amended complaint, filed on July 23, 2007, is dismissed.
3. Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint or an amended petition for a writ of habeas corpus; the second amended complaint or amended habeas petition must bear the docket number assigned to this case and must be labeled "Second Amended Complaint" or "Amended Petition;" plaintiff must use the form complaint or form petition provided by the court;
4. If plaintiff files a second amended complaint, he must also file a new application requesting leave to proceed in forma pauperis within thirty days from the date of this order; the application must have the certificate portion completed by an authorized official, and plaintiff must provide a certified copy of his prison trust account statement for the six month period immediately preceding the filing of this action;
5. The Clerk of the Court is directed to provide plaintiff with the court's form complaint for a § 1983 action, the form petition for a writ of habeas corpus, and the application requesting leave to proceed in forma pauperis; and
6. Plaintiff's failure to comply with this order will result in the dismissal of this action.