Bell v. Hedgpeth

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Claudia Wilken on 6/12/09. (scc, COURT STAFF) (Filed on 6/12/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. HORACE BELL,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 08-03770 CW (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND

Petitioner,

A. HEDGPETH, Warden, Respondent. /

This case was commenced when Petitioner filed a federal habeas corpus form, which he labeled "Petition for a Writ of Mandate." did not complete the habeas corpus form; instead he wrote, "see attachment" at the top of each page. He attached a confusing mix He

of documents, including various documents related to his state court cases. The Court has reviewed these documents and cannot

discern the basic facts surrounding the petition and Petitioner's incarceration. Therefore, the Court cannot fairly evaluate the

petition in its present state, nor can the Court be certain that Petitioner intended to file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has also filed a motion

for leave to proceed in forma pauperis (IFP). Accordingly, the Court DISMISSES the petition with leave to amend in order to allow Petitioner an opportunity to file a proper federal habeas petition on the enclosed habeas corpus form. Petitioner must clearly state his grounds for relief and whether he is challenging his criminal conviction and sentence or the execution of his sentence. If Petitioner wishes to challenge the conditions of his confinement, a federal civil rights claim under 42 U.S.C. § 1983, rather than a federal habeas petition, is the proper way to raise

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

such claims.

See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991).

The Court notes that Petitioner is incarcerated at Kern Valley State Prison (KVSP) in Delano, California, which lies within the venue of the Eastern District of California. § 84(b). See 28 U.S.C.

If Petitioner seeks damages from KVSP prison officials

for conditions of his confinement at KVSP, venue is not proper in this district. See 28 U.S.C. § 1391(b). Therefore, any claims

relating to the conditions of Petitioner's confinement at KVSP should be filed in the United States District Court for the Eastern District of California. CONCLUSION For the foregoing reasons, leave to proceed IFP is GRANTED, and the petition is DISMISSED WITH LEAVE TO AMEND. Within thirty

(30) days of the date of this Order, Petitioner shall file an amended petition on the enclosed habeas corpus form. Petitioner

must write the case number for this action -- Case No. C 08-03770 CW (PR) -- on the form and complete all sections of the form. Failure to file a completed habeas corpus form within the thirty-day deadline shall result in dismissal of this action without prejudice. The Clerk of the Court shall send Petitioner a blank habeas corpus form along with his copy of this Order. This Order terminates Docket no. 3. IT IS SO ORDERED. DATED: 6/12/09 CLAUDIA WILKEN United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORACE BELL, Plaintiff, v. A HEDGPETH et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV08-03770 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on June 12, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Horace A. Bell #J-42454 w/HC form P O Box 6000 Delano, CA 93216 Dated: June 12, 2009 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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