Kurtze v. Kohn et al

Filing 4

ORDER granting 3 Motion/Application for Leave to Proceed in forma pauperis; Petition is dismissed. Amended Petition due within 45 days of the date of this order. Signed by Judge Richard F. Boulware, II on 6/19/2018. (Copies have been distributed pursuant to the NEF, cc: 2254 to P - JM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

GIOVANNI K. KURTZE,

8

Case No. 2:17-cv-01057-RFB-VCF

Petitioner,

ORDER

v.
9
PHILIP J. KOHN, et al.,
10
Respondents.
11
12
13
14
15
16
17

Giovanni K. Kurtze has submitted what he styled as a 42 U.S.C. § 1983 complaint
(ECF No. 1-1). His application to proceed in forma pauperis (ECF No. 3) shall be granted.
While Kurtze used this court’s civil rights complaint form, his claims—that his
defense counsel his state-court criminal case were ineffective in violation of his Sixth
and Eighth Amendment rights—sound in federal habeas corpus. Kurtze’s complaint

18
shall be dismissed with leave to file an amended habeas corpus petition on the court’s §
19
20
21

2254 habeas form.
The court notes that the remedy Kurtze seeks is monetary damages. However,

22

the remedy in habeas corpus is immediate or speedier release from confinement, not

23

monetary damages. § 2254(a); see also Skinner v. Switzer, 562 U.S. 521, 525 (2011);

24

Heck v. Humphrey, 512 U.S. 477, 487 (1994).

25

The court also notes that a habeas petitioner must name as a respondent the

26
state official who has custody of the petitioner, usually the warden of the prison or
27
28

sheriff if the petitioner is in county detention. Habeas Rule 2(a).
1

1
2
3

Kurtze has leave to file an amended petition, if any, on the court’s form. LSR 31. Kurtze shall name his custodian as a respondent, clearly set forth each habeas
ground and briefly set forth the factual basis for each ground.

4
IT IS THEREFORE ORDERED that the petitioner’s application to proceed in
5
6

forma pauperis (ECF No. 3) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall detach and file the

7
8

complaint/petition (ECF No. 1-1).

9
10
11

IT IS FURTHER ORDERED that the complaint/petition is DISMISSED with leave
to file an amended habeas corpus petition in conformance with this order. Petitioner
shall file his amended petition within forty-five (45) days of the date of this order.

12
IT IS FURTHER ORDERED that the Clerk shall send to petitioner one copy of

13
14

this court’s form § 2254 habeas petition, one copy of the information and instructions for

15

filing a § 2254 habeas petition, and one copy of the papers petitioner has filed in this

16

action.

17
18
19

IT IS FURTHER ORDERED that petitioner is expressly advised that failure to file
an amended petition in conformance with this order shall result in the dismissal of this
action.

20
21
22

DATED: 19th day of June, 2018.

23
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

24
25
26
27
28
2