Haney v. Aguirre

Filing 5

ORDER DIRECTING Clerk's Office to Send Petitioner a Habeas Petition, a Civil Rights Complaint, and an Application to Proceed In Forma Pauperis; ORDER REQUIRING Petitioner to (1) File a Notice of Voluntary Dismissal, or (2) File a Petition or, al ternatively a Complaint and Pay the Filing Fee or File an In Forma Pauperis Application within Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 10/12/2010. Notice, Petition, or Complaint due by 11/15/2010. (Attachments: # 1 1983 Complaint and IFP Application, # 2 Petition for Writ of Habeas Corpus)(Sant Agata, S)

(HC) Haney v. Aguirre

Doc. 5

1 2 3 4 5 6 7 8 9 10 BRUCE PATRICK HANEY, 11 Petitioner, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bruce Patrick Haney, a state prisoner who is incarcerated at Corcoran State Prison and is serving a determinate sentence for an offense involving a controlled substance, proceeds pro se with a petition for writ of habeas corpus filed on October 6, 2010. He also filed a motion seeking the appointment of counsel or an order to the Fresno County Superior Court to set a trial date and order the Plaintiff produced for trial. In the petition and attached documents, Petitioner complains that while he was incarcerated in the Pleasant Valley State Prison, Respondent Aguirre and others used excessive force 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

v. R. AGUIRRE, Respondent.

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1:10-cv--01841-SKO-HC ORDER DIRECTING CLERK'S OFFICE TO SEND PETITIONER A HABEAS PETITION, A CIVIL RIGHTS COMPLAINT, AND AN APPLICATION TO PROCEED IN FORMA PAUPERIS ORDER REQUIRING PETITIONER TO (1) FILE A NOTICE OF VOLUNTARY DISMISSAL, OR (2) FILE A PETITION OR, ALTERNATIVELY A COMPLAINT AND PAY THE FILING FEE OR FILE AN IN FORMA PAUPERIS APPLICATION, WITHIN THIRTY (30) DAYS

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against him, refused to summon medical care for his injuries, and retaliated against him for his expressed intention to report Aguirre's misconduct. (Doc. 1, 21.) Petitioner filed a civil

suit against Aguirre and another officer in the Fresno County Superior Court. Recently, the Superior Court stayed the action

and the trial until May 2012, a time following Petitioner's projected release date from prison. (Doc. 1, 17.) Petitioner

filed habeas corpus petitions in the Fifth District Court of Appeal and the Supreme Court of California which have been denied. Petitioner seeks from this Court an order directing the

Superior Court to set his state civil case for trial and direct state authorities to transport Petitioner to trial. Petitioner

alleges that his rights to meaningful access to the courts, due process of law, and equal protection have been denied. This Court understands Petitioner's petition to relate to the conditions of his confinement, namely, his ability to attend trial and thereby to have access to the courts and to enjoy due process of law and equal protection of the law. It does not

appear that his petition relates to the duration or legality of his confinement pursuant to his underlying criminal sentence. Although Petitioner purports to be attempting to appeal denial of his state habeas petitions and to obtain a writ producing him for state trial, a habeas petition in federal court is the proper mechanism to challenge the fact or duration of confinement. 28 U.S.C. § 2254(a); Badea v. Cox, 931 F.2d 573,

574 (9th Cir. 1991) (citing Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct. 1827, 1833 (1973)). In contrast, challenges to

conditions of confinement, such as those set forth in 2

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Petitioner's petition, must be raised in a civil rights action. Badea, 931 F.2d at 574 (citing Preiser, 411 U.S. at 485, 93 S.Ct. at 1833). The Court will direct the Clerk's Office to provide Petitioner with a form habeas petition, a civil rights complaint form, and an application to proceed in forma pauperis. With the

above notice in mind, Petitioner shall file either a petition or a complaint bearing the case number of this proceeding within thirty (30) days. Further, although this Court has authorized Petitioner to proceed in forma pauperis with respect to a habeas petition, it is anticipated that Petitioner will file a civil rights complaint in response to this order. In a civil rights action, the

plaintiff must either pay the filing fee in full or file an application to proceed in forma pauperis. Therefore, either the

fee or an application to proceed in forma pauperis with respect to a civil rights action must be submitted along with a complaint. In the alternative, Petitioner may file a notice of voluntary dismissal if he no longer wishes to pursue this action. Fed. R. Civ. P. 41(a)(1). Accordingly, it is HEREBY ORDERED that: 1. The Clerk's Office shall send Petitioner a form habeas

petition for a state prisoner, a civil rights complaint form for an incarcerated person, and an application to proceed in forma pauperis; and 2. Within thirty (30) days from the date of service of this

order, Petitioner shall (1) file a notice of voluntary dismissal, 3

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or (2) file either a petition, or a complaint accompanied by either the filing fee in full or an application to proceed in forma pauperis; and 3. Petitioner is informed that the failure to comply with

this order will result in dismissal of this action, without prejudice.

IT IS SO ORDERED. Dated: ie14hj October 12, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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