Parvin v. Walker

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/25/2012 ORDERING that plaintiff has 30 days to file a petition for writ of habeas corpus or complaint; and the clerk to send plaintiff the form for filing an application for writ of habeas corpus. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN ALAN PARVIN,

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Plaintiff,

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No. 2:12-cv-1013 WBS CKD P

vs.
JAMES WALKER,

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Defendants.

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ORDER
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Plaintiff, a state prisoner at California State Prison – Sacramento, has filed a

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motion to proceed in forma pauperis (IFP).1 However, the court is not in receipt of a complaint

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or petition stating the prisoner’s claims or a request for relief. The court has recently received a

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“request for judicial notice,” wherein the inmate complains that the Superior Court of Shasta

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County sentenced him in excess of its jurisdiction. He therefore appears to seek habeas relief,

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but the court has concluded that, rather than construe the request for judicial notice as an

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application for habeas relief, the better course is to allow the inmate time to file a formal petition

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for writ of habeas corpus. Once the court receives the petition, it will rule on the motion to

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proceed IFP and decide whether the petition states any ground on which habeas relief could be

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The application to proceed in forma pauperis is dated June 13, 2010. The motion was
received April 17, 2012, and was the first submission from petitioner regarding a new case. The
court is also in receipt of a letter from the warden of California State Prison-Sacramento stating
that as of April 11, 2012, the application for IFP had not been delivered.
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granted.

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If the inmate does not seek release from prison or a reduction of his sentence but

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instead complains about conditions of his confinement, he should submit a complaint alleging

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violation of his civil rights under 42 U.S.C. § 1983. He should do so because when a state

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prisoner challenges the conditions of his confinement, his claims are cognizable in a civil rights

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action rather than a habeas corpus action. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir.1991).

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When a state prisoner challenges the legality or duration of his custody and the relief he seeks is

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an order for earlier or immediate release, the prisoner has stated a claim for habeas relief under

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28 U.S.C. § 2254, not a civil rights claim under § 1983. See Preiser v. Rodriguez, 411 U.S. 475,

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500 (1973). If the prisoner seeks both kinds of relief, he must do so in separate actions. A

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federal court may not consider habeas claims and civil rights claims in a single action.

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Finally, regardless of whether the prisoner files a petition for writ of habeas

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corpus or a civil rights complaint, he must state his allegations with enough specificity that the

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court and the respondent (or defendant) can clearly discern the nature of his claims and the facts

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underlying them. A habeas petition or civil rights complaint need not describe the facts of an

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alleged constitutional violation in minute detail, but it must give the court a clear understanding

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of the “who, what, when and how” of the prisoner’s claims. The prisoner in this case is apprised

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that failure to allege his claims clearly and with specificity may result in dismissal.

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

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1. Plaintiff is granted thirty days from the date of service of this order to file a

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petition for writ of habeas corpus or complaint alleging violation of his civil rights. The pleading

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must bear the docket number assigned this case, and plaintiff must file an original and two copies

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of the petition or complaint. Plaintiff's failure to comply with this order will result in a

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recommendation that this matter be dismissed.

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2. The Clerk of the Court is directed to send plaintiff the court’s form for filing an
application for writ of habeas corpus.

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Dated: May 25, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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parv1013.no compl

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