Nguonv.Virga

United States District Court, E.D. CaliforniaSep 16, 2010
No. 2:10-cv-2422 KJN P (E.D. Cal. Sep. 16, 2010)

No. 2:10-cv-2422 KJN P.

September 16, 2010


ORDER


KENDALL NEWMAN, Magistrate Judge

Petitioner, a state prisoner proceeding without counsel, has filed an action on a form for a petition for a writ of habeas corpus. Petitioner alleges, inter alia, that he received inadequate mental health care at California Medical Facility, and was subjected to incidents of excessive force, in violation of the Eighth Amendment. Petitioner is presently housed at California State Prison-Sacramento.

A petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 challenges the fact or duration of a petitioner's conviction. By contrast, a civil rights action brought pursuant to 42 U.S.C. § 1983, challenges the conditions of the prisoner's confinement. Because petitioner's claims do not challenge his custody, it is not appropriate for a § 2254 action. Therefore, this case will be dismissed. See Rule 4, Rules Governing Section 2254 Cases; see also Nguon v. Dickinson, 2:10-cv-0295 KJM P, Order filed February 12, 2010.

This is not the first time plaintiff has been informed of this distinction. See Nguon v. Virga, 2:02-cv-1115 GGH P, Order filed July 13, 2010, at 1. Indeed, plaintiff has filed 18 actions on habeas corpus forms in the Sacramento Division of the Eastern District since January 1, 2010, most of which raised claims unrelated to the fact or duration of petitioner's conviction. A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). In addition, when filing a civil rights complaint challenging the conditions of confinement, the prisoner must provide a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2). Moreover, pursuant to federal statute, a filing fee of $350.00 is required to commence a civil rights action in federal district court. 28 U.S.C. § 1914(a). Even if petitioner is granted leave to proceed in forma pauperis, he is responsible for the $350.00 filing fee in a civil rights action, which will be deducted from petitioner's prison trust account. Id.

In accordance with the above, IT IS HEREBY ORDERED that this action is dismissed.

DATED: September 16, 2010