Lightener v. Yates

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/17/2010 ORDERING that the petition is DISMISSED w/ leave to amend; the clerk to send ptnr forms for a hc petition and for a § 1983 cmplt; w/in 30 days, ptnr to file an amended writ of habeas corpus in this court, alternatively, he may file a § 1983 cmplt in the Fresno Division. (Yin, K)

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(HC) Lightener v. Yates Doc. 5 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. JAMES A. YATES, Respondent. / Petitioner, a state prisoner without counsel, has filed a petition for a writ of habeas corpus. See 28 U.S.C. 2254. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See 28 U.S.C. 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2). The petition states that petitioner is being denied access to the internal appeals process at his prison. This claim may not be brought under 2254, as it does not implicate the constitutionality of his current or future custody. See Rule 1, Rules Governing Habeas Corpus Cases Under Section 2254. It appears that petitioner may be attempting to file a civil suit under 42 U.S.C. 1983, challenging the constitutionality of the conditions of his confinement. Petitioner was convicted in Sacramento County, but is currently confined in Fresno County. If petitioner truly wishes to challenge the constitutionality of his current or future 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JAMES H. LIGHTENER, Petitioner, No. CIV S-10-2612 EFB P ORDER Dockets.Justia.com 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 custody in a habeas action, he may do so in a habeas action brought in this court. However, if petitioner wishes to file a civil rights action under 1983, he must do so in the district court in Fresno. See E.D. Cal. Local Rule 120(d). Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. 1915(a). As it is not clear which type of suit he wishes to file, the court will not yet rule on this motion. Accordingly, it is hereby ordered that: 1. The petition is dismissed with leave to amend; 2. The Clerk of Court shall send petitioner blank forms for a habeas corpus petition and for a 1983 complaint; 3. Within 30 days, petitioner shall file an amended writ of habeas corpus in this court. He may alternatively file a 1983 complaint in the Fresno division. 4. Failure to file an amended writ of habeas corpus within 30 days will result in the dismissal of this action. DATED: November 17, 2010. 2

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