McNeal v. Unknown

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 9/23/14 ORDERING that Plaintiffs September 12, 2014 letter is denied without prejudice; Plaintiff is granted thirty days from the date of service of this order to file a complaint or a petiti on that complies with the requirements. Clerk of the Court is directed to send plaintiff the courts form for filing a civil rights action, a petition for writ of habeas corpus, and the application to proceed in forma pauperis by a prisoner.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VERNON MCNEAL,

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Plaintiff,

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No. 2:14-cv-2121 KJN P

v.

ORDER

UNKNOWN,

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Defendants.

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Plaintiff, a state prisoner at Calipatria State Prison, has filed a letter to the court. No other

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pleadings have been filed by the plaintiff. It is unclear whether plaintiff seeks to file a civil rights

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complaint pursuant to 42 U.S.C. § 1983, or a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254. If plaintiff is challenging the conditions of his confinement, he should file a civil

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rights complaint. If plaintiff is challenging the fact or duration of his confinement, he should file

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a petition for writ of habeas corpus.
In order to commence an action, plaintiff must file a complaint as required by Rule 3 of

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the Federal Rules of Civil Procedure, or a petition for writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254. Plaintiff must either pay the required filing fee or file an application requesting leave to

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proceed in forma pauperis.1 See 28 U.S.C. §§ 1914(a), 1915(a). The court will not issue any

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If leave to file in forma pauperis is granted, plaintiff will still be required to pay the filing fee in
a civil rights action but will be allowed to pay it in installments.
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orders granting or denying relief until an action has been properly commenced. Therefore,

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plaintiff’s motion will be denied without prejudice. Plaintiff will be provided the opportunity to

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file his complaint or petition, and to submit an application requesting leave to proceed in forma

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pauperis or to submit the appropriate filing fee.

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

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1. Plaintiff’s September 12, 2014 letter is denied without prejudice;

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

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or a petition that complies with the requirements of the Civil Rights Act, the Federal Rules of

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Civil Procedure, and the Local Rules of Practice; the complaint must bear the docket number

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assigned this case; plaintiff must file an original and two copies of the complaint. Plaintiff shall

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also submit, within thirty days from the date of this order, the application to proceed in forma

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pauperis on the form provided by the Clerk of Court, or the appropriate filing fee.2 Plaintiff’s

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failure to comply with this order will result in a recommendation that this matter be dismissed;

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and
3. The Clerk of the Court is directed to send plaintiff the court’s form for filing a civil

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rights action, a petition for writ of habeas corpus, and the application to proceed in forma

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pauperis by a prisoner.

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Dated: September 23, 2014

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/mcne2121.Nocompl

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The filing fee for a civil rights action is $400.00, comprised of the $350.00 filing fee and a
$50.00 administrative fee. If plaintiff is granted leave to proceed in forma pauperis, plaintiff is
not required to pay the $50.00 administrative fee. The filing fee for an application for a writ of
habeas corpus is $5.00.
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