Svelund v. Sisto et al (PC)

Filing 6

ORDER signed by Magistrate Judge John F. Moulds on 01/14/09 ordering the 11/23/09 petition is dismissed. Within 30 days from the date of this order, petitioner shall complete the attached Notice of Amendment and submit it along with the amended complaint to the court. Upon submission of the amended complaint, the court will review petitioner's motion to proceed in forma pauperis filed 12/18/09. (Plummer, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. D.K. SISTO, Warden, et al., Respondents. / Petitioner is a state prisoner proceeding pro se. On October 20, 2009, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. However, on the first page of that form, petitioner clearly states the petition "is on conditions of confinement." Id. Allegations concerning the conditions of petitioner's confinement are not cognizable in a federal habeas corpus action. See Preiser v. Rodriguez, 411 U.S. 475 (1973) (federal writ of habeas corpus available only to challenge fact or duration of confinement and not conditions thereof). Moreover, if petitioner wishes to pursue a civil rights action pursuant to 42 U.S.C. § 1983 concerning the conditions of confinement, he will incur a liability in the amount of the $350.00 federal court filing fee for a civil rights action, even if he is granted leave to proceed in forma pauperis. See 28 U.S.C. §§ 1914, 1915(b). 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JOHN D. SVELUND, Petitioner, No. 2:09-cv-3259 JFM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
/001; svel3259.14

Thus, the petition will be dismissed and petitioner will be granted leave to file a civil rights complaint. The Clerk of the Court will be directed to provide petitioner with the civil rights complaint form. The court notes that petitioner appended to his petition exhibits demonstrating exhaustion of his administrative remedies. Petitioner may ask the court to remove those exhibits from the petition and append them to his civil rights complaint if he wishes to avoid making additional photocopies. Accordingly, IT IS HEREBY ORDERED that: 1. The November 23, 2009 petition is dismissed. 2. Within thirty days from the date of this order, petitioner shall complete the attached Notice of Amendment and submit the following documents to the court: a. The completed Notice of Amendment; and b. An original and one copy of the Amended Complaint. Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned this case and must be labeled "Amended Complaint"; failure to file an amended complaint in accordance with this order may result in the dismissal of this action. 3. Upon submission of the amended complaint, the court will review petitioner's motion to proceed in forma pauperis, filed December 18, 2009. DATED: January 14, 2010.

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Petitioner 22 23 24 25 26 3 DATED: order filed vs. D.K. SISTO, Warden, et al., Defendants. ____________________________________/ Petitioner hereby submits the following document in compliance with the court's : ______________ Amended Complaint NOTICE OF AMENDMENT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JOHN D. SVELUND, Petitioner, No. 2:09-cv-3259 JFM