Dean v. Wong

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 9/20/11 ORDERING that This action is construed as having been brought pursuant to 42 U.S.C. § 1983and the ADA; 3 Motion to Proceed IFP is DISMISSED without prejudice; Clerk of the Court is directed to send petitioner a new Application to Proceed In Forma Pauperis By a Prisoner; and Petitioner shall submit, within 30 days from the date of this order, a completed application to proceed in forma pauperis.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALTON E. DEAN,

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Petitioner,

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vs.

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No. 2: 11-cv-2152 KJN P

E. WONG, et al.,

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Respondents.

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ORDER
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Petitioner, a state prisoner proceeding without counsel, has filed a petition for writ

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of habeas corpus. In this petition, petitioner challenges conditions of confinement. Petitioner

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alleges violations of his constitutional rights and the Americans with Disabilities Act (“ADA”).

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The caption of the petition states “Superior Court of California of San Joaquin.” On August 25,

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2011, petitioner was ordered to inform the court whether he intended to proceed with this action

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in this court, or whether he meant to file this action in the San Joaquin County Superior Court.

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On September 14, 2011, petitioner filed a pleading indicating that he intends to proceed with this

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action in this court.

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The purpose of a habeas corpus petition pursuant to 28 U.S.C. § 2254 is to

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challenge the legality of a conviction or sentence. The purpose of a civil rights action brought

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pursuant to 42 U.S.C. § 1983 or an action brought pursuant to the ADA is to challenge
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conditions of confinement. Accordingly, the court construes this action as having been brought

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pursuant to 42 U.S.C. § 1983 and the ADA.

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Petitioner has filed a request for leave to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. Petitioner has not, however, filed his application for leave to proceed in forma

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pauperis on the form used by this district. Use of the form assists petitioner to establish and the

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court to evaluate petitioner’s in forma pauperis status in light of 28 U.S.C. § 1915 (b)(1) and (2).

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Accordingly, petitioner’s application will be dismissed and petitioner will be provided the

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opportunity to submit the application on the appropriate form. Petitioner is cautioned that he

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must also provide a certified copy of his prison trust account statement for the six month period

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immediately preceding the filing of his complaint.1

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. This action is construed as having been brought pursuant to 42 U.S.C. § 1983

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and the ADA;

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2. Petitioner’s application to proceed in forma pauperis is dismissed without
prejudice;

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3. The Clerk of the Court is directed to send petitioner a new Application to
Proceed In Forma Pauperis By a Prisoner; and

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4. Petitioner shall submit, within thirty days from the date of this order, a

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completed application to proceed in forma pauperis. Petitioner’s failure to comply with this

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order may result in the dismissal of this action without prejudice.

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DATED: September 20, 2011

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dean2152.ifp

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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Petitioner has been found to have “three strikes” pursuant to 28 U.S.C. § 1915(g).
After reviewing the petition, the undersigned finds that petitioner may meet the “imminent
danger” exception to this rule.
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