Miramontes v. Worland et al

Filing 12

ORDER Granting 4 Motion to Dismiss. For the foregoing reasons, Respondent's motion to dismiss is GRANTED. This action for a writ of habeas corpus is DISMISSED without prejudice to Petitioner filing a civil rights action under 42 U.S.C.
67; 1983, preferably using the court's civil rights complaint form, after he has exhausted California's prison administrative remedies. See 42 U.S.C. § 1997e(a). The Clerk is instructed to include two copies of the prisoner civil rights complaint form to Petitioner with a copy of this order. Signed by Judge Edward J. Davila on 9/16/2014 (Attachments: # 1 Form Habeas Complaint) (ecg, COURT STAFF) (Filed on 9/17/2014)

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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INSTRUCTIONS FOR FILING A COMPLAINT BY A PRISONER
UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §§ 1983

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I.

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You may file an action under 42 U.S.C. §§ 1983 to challenge federal constitutional or
statutory violations by state actors which affect the conditions of your confinement.

42 U.S.C. §§ 1983

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A §§ 1983 action may not be used to challenge the length of your sentence or the validity
of your conviction. Such claims must be addressed in a petition for a writ of habeas corpus, on
the correct forms provided by the clerk of the court.

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II.

Filing a §§ 1983 Action

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To file a §§ 1983 action, you must submit: (1) an original complaint and (2) a check or
money order for $350.00 or an original Prisoner's In Forma Pauperis Application.
This packet includes a complaint form and a Prisoner's In Forma Pauperis Application.
When these forms are fully completed, mail the originals to: Clerk of the United States District
Court for the Northern District of California, 450 Golden Gate Avenue, Box 36060, San
Francisco, CA 94102.

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III.

Filing Fees

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Under the Deficit Reduction Act of 2005, the filing fee for a § 1983 action filed on or
after April 9, 2006 has been increased to $350.00 from $250.00, to be paid at the time of filing.
If you are unable to pay the full filing fee at this time, you may petition the court to proceed in
forma pauperis, using the Prisoner's In Forma Pauperis Application in this packet. You must
fully complete the application and sign and declare under penalty of perjury that the facts stated
therein are true and correct.

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Each plaintiff must submit his or her own Prisoner's In Forma Pauperis Application. You
must use the Prisoner's In Forma Pauperis Application provided with this packet and not any
other version.

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IV.

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You must complete the entire complaint form. Your responses must be typewritten or
legibly handwritten and you must sign and declare under penalty of perjury that the facts stated in
the complaint are true and correct. Each plaintiff must sign the complaint.

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Complaint Form

Under 42 U.S.C. §§ 1997e, you are required to exhaust your administrative remedies
before filing a §§ 1983 action; you must indicate clearly on the complaint form whether you have
done so.

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PrisonerCiv4-06.wpd

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V.

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You will be notified as soon as the court issues any order in your case. It is your
responsibility to keep the court informed of any changes of address to ensure you receive court
orders. Failure to so do may result in dismissal of your action.

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VI.

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If you are seeking leave to proceed in forma pauperis and, while incarcerated or detained,
you have filed §§ 1983 actions on three or more prior occasions which were dismissed as
frivolous, malicious, or for failure to state a claim upon which relief may be granted, you may not
file a new §§ 1983 action unless you are under imminent danger of serious physical injury. 28
U.S.C.
§§ 1915(g).

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After Complaint Is Filed

Repeat Filers

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VII.
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Inquiries and Copying Requests
Because of the large volume of cases filed by inmates in this court and very limited court
resources, the court can no longer answer questions concerning the status of your case or provide
copies of documents, except at a charge of fifty cents ($0.50) per page. You must therefore keep
copies of all documents submitted to the court for your own records.

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PrisonerCiv4-06.wpd

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COMPLAINT BY A PRISONER UNDER THE CIVIL RIGHTS ACT, 42 U.S.C §§ 1983
Name _________________________________________________________________
(Last)

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(First)

(Initial)

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Prisoner Number ________________________________________________________

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Institutional Address _____________________________________________________
_______________________________________________________________________
=====================================================================
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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_____________________________________
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(Enter the full name o f plaintiff in this actio n.)

vs.
_____________________________________

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_____________________________________

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_____________________________________
(Enter the full name of the defendant(s) in this action)

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Case No. _____________________
(To be provided by the C lerk of C ourt)

COMPLAINT UNDER THE
CIVIL RIGHTS ACT,
Title 42 U.S.C § 1983

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[All questions on this complaint form must be answered in order for your action to proceed..]

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I.

Exhaustion of Administrative Remedies.

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[Note: You must exhaust your administrative remedies before your claim can go

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forward. The court will dismiss any unexhausted claims.]

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A.

Place of present confinement _______________________________

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B.

Is there a grievance procedure in this institution?

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YES ( )
C.

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Did you present the facts in your complaint for review through the grievance
procedure?

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NO ( )

YES ( )
D.

NO ( )

If your answer is YES, list the appeal number and the date and result of the

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appeal at each level of review. If you did not pursue a certain level of appeal,

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explain why.

COMPLAINT

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1. Informal appeal

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2. First formal level

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3. Second formal level

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4. Third formal level

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E.

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Is the last level to which you appealed the highest level of appeal available to
you?

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YES ( )

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F.

NO ( )

If you did not present your claim for review through the grievance procedure,

explain why.

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II.

Parties.
A.

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Write your name and your present address. Do the same for additional plaintiffs,
if any.

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B.

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Write the full name of each defendant, his or her official position, and his or her
place of employment.

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COMPLAINT

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III.

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Statement of Claim.
State here as briefly as possible the facts of your case. Be sure to describe how each

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defendant is involved and to include dates, when possible. Do not give any legal arguments or

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cite any cases or statutes. If you have more than one claim, each claim should be set forth in a

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separate numbered paragraph.

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IV.

Relief.
Your complaint cannot go forward unless you request specific relief. State briefly exactly

what you want the court to do for you. Make no legal arguments; cite no cases or statutes.

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COMPLAINT

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I declare under penalty of perjury that the foregoing is true and correct.

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Signed this ___________ day of ____________________, 20_____

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_____________________________________________

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(Plaintiff's signature)

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COMPLAINT

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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INSTRUCTIONS FOR PRISONER'S
IN FORMA PAUPERIS APPLICATION

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You must submit to the court a completed Prisoner's In Forma Pauperis Application if
you are unable to pay the entire filing fee at the time you file your complaint or petition. Your
application must include copies of the prisoner trust account statement showing transactions
for the last six months and a certificate of funds in prisoner's account, signed by an authorized
officer of the institution.

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A.

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Effective April 9, 2006, the filing fee for any civil action other than a habeas is
$350.00. Even if you are granted leave to proceed in forma pauperis, you must still pay the
full amount of the court's filing fee, but the fee will be paid in several installments. 28 U.S.C.
§ 1915.

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Non-habeas Civil Actions

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You must pay an initial partial filing fee of 20 percent of the greater of (a) the average
monthly deposits to your account for the 6-month period immediately before the complaint
was filed or (b) the average monthly balance in your account for the 6-month period
immediately before the complaint was filed. The court will use the information provided on
the certificate of funds and the trust account statement to determine the filing fee immediately
due and will send instructions to you and the prison trust account office for payment if in
forma pauperis status is granted.

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After the initial partial filing fee is paid, your prison's trust account office will forward
to the court each month 20 percent of the most recent month's income to your prison trust
account, to the extent the account balance exceeds ten dollars ($10.00). Monthly payments
will be required until the full filing fee is paid. If you have no funds over ten dollars ($10.00)
in your account, you will not be required to pay part of the filing fee that month.

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If your application to proceed in forma pauperis is granted, you will be liable for
the full $350.00 filing fee even if your civil action is dismissed. That means the court will
continue to collect payments until the entire filing fee is paid. However, if you do not
submit this completed application the action will be dismissed without prejudice and the
filing fee will not be collected.

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B.

Habeas Actions

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The filing fee for a habeas action is $5.00. If you are granted leave to proceed in
forma pauperis you will not be required to pay any portion of this fee. If you are not granted
leave to proceed in forma pauperis you must pay the fee in one payment and not in
installments. If you use a habeas form to file a non-habeas civil action, you will be
required to pay the $350.00 filing fee applicable to all non-habeas civil actions.

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IFP APPLI.-PRISONER (Rev. 2/05)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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vs.

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Defendant.

CASE NO.
PRISONER’S
APPLICATION TO PROCEED
IN FORMA PAUPERIS

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I,

, declare, under penalty of perjury that I am the

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plaintiff in the above entitled case and that the information I offer throughout this application

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is true and correct. I offer this application in support of my request to proceed without being

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required to prepay the full amount of fees, costs or give security. I state that because of my

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poverty I am unable to pay the costs of this action or give security, and that I believe that I am

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entitled to relief.

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In support of this application, I provide the following information:

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1.

Are you presently employed? Yes

No

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If your answer is "yes," state both your gross and net salary or wages per month, and give the

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name and address of your employer:

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Gross:

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Employer:

Net:

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PRIS. AP P. TO PRO C. IN FO RM A PA UPE RIS

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If the answer is "no," state the date of last employment and the amount of the gross and net

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salary and wages per month which you received. (If you are imprisoned, specify the last

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place of employment prior to imprisonment.)

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2.

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following sources:

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Have you received, within the past twelve (12) months, any money from any of the

a.

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Business, Profession or

Yes

No

Yes

No

self employment

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b.

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Income from stocks, bonds,
or royalties?

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c.

Rent payments?

Yes

No

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d.

Pensions, annuities, or

Yes

No

Yes

No

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life insurance payments?

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e.

Federal or State welfare payments,

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Social Security or other govern-

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ment source?

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If the answer is "yes" to any of the above, describe each source of money and state the amount

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received from each.

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3.

Are you married?

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Spouse's Full Name:

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Spouse's Place of Employment:

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Spouse's Monthly Salary, Wages or Income:

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Gross $

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4.

a.

Yes

Net $
List amount you contribute to your spouse's support:$

PRIS. AP P. TO PRO C. IN FO RM A PA UPE RIS

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No

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b.

List the persons other than your spouse who are dependent upon you for

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support and indicate how much you contribute toward their support. (NOTE:

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For minor children, list only their initials and ages. DO NOT INCLUDE

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THEIR NAMES.).

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5.

Do you own or are you buying a home?

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Estimated Market Value: $

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6.

Yes

No

Amount of Mortgage: $

Do you own an automobile?

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Make

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Is it financed? Yes

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Year

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No

Monthly Payment: $

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Yes

Name(s) and address(es) of bank:

No

Model
If so, Total due: $

Do you have a bank account? Yes

No

(Do not include account numbers.)

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Present balance(s): $

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Do you own any cash? Yes

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Do you have any other assets? (If "yes," provide a description of each asset and its estimated

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market value.)

Yes

No

Amount: $

No

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8.

What are your monthly expenses?

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Rent: $

Utilities:

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Food: $

Clothing:

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Charge Accounts:

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Name of Account

Monthly Payment

Total Owed on This Acct.

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$

$

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$

$

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$

$

PRIS. AP P. TO PRO C. IN FO RM A PA UPE RIS

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9.

Do you have any other debts? (List current obligations, indicating amounts and to

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whom they are payable. Do not include account numbers.)

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10.

Does the complaint which you are seeking to file raise claims that have been presented

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in other lawsuits?

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Please list the case name(s) and number(s) of the prior lawsuit(s), and the name of the court in

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which they were filed.

Yes

No

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I consent to prison officials withdrawing from my trust account and paying to the court
the initial partial filing fee and all installment payments required by the court.
I declare under the penalty of perjury that the foregoing is true and correct and
understand that a false statement herein may result in the dismissal of my claims.

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DATE

SIGNATURE OF APPLICANT

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PRIS. AP P. TO PRO C. IN FO RM A PA UPE RIS

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Case Number:

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CERTIFICATE OF FUNDS

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IN

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PRISONER'S ACCOUNT

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I certify that attached hereto is a true and correct copy of the prisoner's trust account
statement showing transactions of

for the last six months
[prisoner name]

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where (s)he is confined.
[name of institution]

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I further certify that the average deposits each month to this prisoner's account for the

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most recent 6-month period were $

and the average balance in the prisoner's

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account each month for the most recent 6-month period was $

.

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Dated:_____________

___________________________________
[Authorized officer of the institution]

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