Opinion
No. CIV S-06-2761 GEB GGH P.
April 4, 2007
ORDER
Petitioner, a state prisoner proceeding pro se, has filed an application using the form for a habeas petition, pursuant to 28 U.S.C. § 2254, but he seeks relief pursuant to 42 U.S.C. § 1983. Although petitioner has filed an affidavit requesting authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis, the court will not assess a filing fee at this time as petitioner has not used the appropriate form to proceed in this action. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).
Petitioner alleges that he was subjected to cruel and unusual punishment by N.A. Chaderjian Youth Correctional Facility staff when he was "brutally attacked and battered with excessive force by means of chemical agents. . . ." in November of 2001. Petition, p. 6. Petitioner challenges conditions of his confinement, rather than challenging the constitutionality of his conviction or sentence.
Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a 1983 action.Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 1304 (2004) (per curiam).
Petitioner's petition will be dismissed and petitioner, as plaintiff, will be granted leave to file, within thirty days, an action pursuant to 42 U.S.C. § 1983. Petitioner, as plaintiff, must file a complaint that complies with the requirements of Fed.R.Civ.P 8. In the petition, petitioner may be framing a colorable Eighth Amendment claim, however, although he names several individuals, he fails to link them, to the extent that he has made specific allegations of excessive force, to the conduct that he alleges deprived him of his constitutional rights. Moreover, plaintiff failed to set forth the remedy he seeks. Rule 8 requires "sufficient allegations to put defendants fairly on notice of the claims against them." McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991)). Accord Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir. 1995) (amended complaint with vague and scanty allegations fails to satisfy the notice requirement of Rule 8.)
Should petitioner seek to proceed as plaintiff in a civil rights action, he must file a complaint on the form to be provided by the court. At that time, the court will determine whether plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). The court does not do so at this time because the filing fee for a civil rights action ($350.00) substantially exceeds the $5.00 filing fee for a habeas petition.
In accordance with the above, IT IS HEREBY ORDERED that:
1. The petition is dismissed with leave granted for petitioner, as plaintiff, to proceed pursuant to 42 U.S.C. § 1983, by filing a complaint on the form to be provided by the court, within thirty days; failure to file a complaint will result in a recommendation that the action be dismissed.
2. The court will determine whether plaintiff has made the requisite showing to proceed in forma pauperis in this action once plaintiff files the appropriate complaint.
3. The Clerk of the Court is directed to provide petitioner, as plaintiff, the form appropriate for filing a civil rights action by a prisoner in this district.
4. The Clerk of the Court is also directed to re-designate this action as one brought pursuant to 42 U.S.C. § 1983.