In Re Tyrone Noel Nunn ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 In re Case No. 2:24-cv-01242-CDS-EJY Tyrone Noel Nunn 5 ORDER 6 7 Plaintiff, incarcerated in the Nevada Department of Corrections, initiated this action with a 8 document titled “1st Amended Complaint, Petition for Writ of Habeas Corpus, Request for 9 Evidentiary Hearing, Motion for In Forma Pauperis, and Article 440 Motion.” ECF No. 1-1. 10 Plaintiff subsequently filed an application to proceed in forma pauperis in which he checked boxes 11 to initiate a civil rights complaint under 42 U.S.C. § 1983 and a petition for writ of habeas corpus. 12 ECF No. 3. Plaintiff included with this filing a financial certificate where he checked the box for a 13 civil rights complaint. Id. Separately, Plaintiff filed a document stating he is seeking $90,000 in 14 damages. ECF No. 4. 15 The Court does not know whether Plaintiff is attempting to bring a civil rights complaint 16 under 42 U.S.C. § 1983 or a petition for writ of habeas corpus. Plaintiff cannot pursue both types of 17 claims in the same case. See Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (reiterating that 18 “habeas is the exclusive vehicle for claims brought by state prisoners that fall within the core of 19 habeas, and such claims may not be brought in a § 1983 action”); Wilkinson v. Dotson, 544 U.S. 74, 20 81–82 (2005) (holding that “a state prisoner’s § 1983 action is barred (absent prior invalidation)— 21 no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit 22 (state conduct leading to conviction or internal prison proceedings)—if success in that action would 23 necessarily demonstrate the invalidity of confinement or its duration”). Plaintiff may pursue a § 24 1983 action or a habeas corpus petition in this case but not both. 25 Accordingly, IT IS HEREBY ORDERED that no later than September 13, 2024, Plaintiff 26 must file a notice indicating whether he seeks to initiate a civil rights case under 42 U.S.C. § 1983 27 or relief through a habeas corpus petition. 1 IT IS FURTHER ORDERED that failure to file a notice indicating what type of action 2 Plaintiff is trying to initiate will result in a recommendation to dismiss this action without prejudice. 3 A dismissal without prejudice allows Plaintiff to file his case with the Court under a new case number 4 when he is able to state the type of case that he is trying to bring. 5 Dated this 26th day of August, 2024. 6 7 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27