Rhone v. Butte County Jail

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/8/2018 ORDERING, within 30 days, petitioner may file a civil rights complaint. If he fails to do so, this action will proceed on his initial filing as a habeas case. Petitioner has 30 days to submit either the applicable filing fee or the application required by § 1915(a). The Clerk shall send petitioner the ifp and civil rights complaint forms.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TREVER NEIL RHONE,

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No. 2:18-cv-288-EFB P

Petitioner,
v.

ORDER

BUTTE COUNTY JAIL,

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Respondent.

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Petitioner is a county jail inmate without counsel. This action was opened when he filed a

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“petition for writ of habeas corpus” concerning “medical misconduct and neglect.” ECF No. 1. It

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is not clear whether he intended to file an application for writ of habeas corpus pursuant to 28

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U.S.C. § 2254 or a civil rights complaint pursuant to 42 U.S.C. § 1983. Habeas petitions and

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civil rights complaints provide exclusive vehicles for relief and may not be pursued concurrently

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in a single action. See Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (holding that if a

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state prisoner’s claim would not necessarily lead to immediate or speedier release, it may not be

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brought in habeas corpus but must be brought, if at all, under § 1983).

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In addition, petitioner has not filed an in forma pauperis application or paid the required

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filing fee ($5.00 for a habeas action; $400 for a civil action). See 28 U.S.C. §§ 1914(a); 1915(a).

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To proceed with this action, petitioner must pay the required filing fee or request leave to proceed

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in forma pauperis and submit the affidavit and trust account statement required by 28 U.S.C.

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§ 1915(a).

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Accordingly, it is hereby ORDERED that:

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1. Petitioner may file a civil rights complaint pursuant to 42 U.S.C. § 1983 within 30

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days from the date of service of this order. If he fails to do so, this action will proceed

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on his initial filing as a habeas case.

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2. Petitioner has 30 days from the date of service of this order to submit either the

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applicable filing fee or the application required by § 1915(a). Failure to comply with

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this order will result in a recommendation that this action be dismissed.

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3. The Clerk of the Court is directed to send petitioner the court’s form application for

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leave to proceed in forma pauperis and the prisoner civil rights complaint form.

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DATED: February 8, 2018.

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