-GWF Griffin v. Prado et al, No. 2:2012cv00352 - Document 2 (D. Nev. 2012)

Court Description: ORDER that 1 Application to proceed in forma pauperis is DENIED and that his action shall be DISMISSED without prejudice to the filing of a new pleading in a new action with a properly completed pauper application. IT IS FURTHER ORDERED that a ce rtificate of appealability is DENIED. Clerk of Court shall enter final judgment in favor of respondents and against petitioner, dismissing this action without prejudice. Signed by Judge Kent J. Dawson on 3/5/12. (Copies have been distributed pursuant to the NEF - EDS)

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-GWF Griffin v. Prado et al Doc. 2 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 ERIC GRIFFIN, 8 Petitioner, 2:12-cv-00352-KJD-GWF 9 vs. 10 ORDER 11 12 PRADO, et al., Respondents. 13 14 15 Petitioner has submitted an application (#1) to proceed in forma pauperis and a purported habeas petition. 16 The matter has not been properly commenced because the pauper application does 17 not include all required attachments. Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR1-2, 18 a petitioner must attach both an inmate account statement for the past six months and a 19 properly executed financial certificate. Petitioner attached neither. He attached a release of 20 funds authorization for the postage for a mailing to federal court, which is neither an account 21 statement nor an executed financial certificate. The application therefore is incomplete. 22 The application therefore will be denied, and the present action will be dismissed 23 without prejudice to the filing of a new petition in a new action with a pauper application on 24 the proper form with all required attachments. 25 It does not appear from the papers presented that a dismissal without prejudice will 26 materially affect a later analysis of either the timeliness issue or other procedural issues with 27 regard to a promptly filed new action. The only purported “judgment of conviction” referenced 28 in the federal petition is a January 4, 2012, denial of relief by the Supreme Court of Nevada Dockets.Justia.com 1 in No. 58455 in that court. Review of the online docket records of the state supreme court 2 reflects that on December 7, 2011, in that matter, the state supreme court affirmed the 3 dismissal of petitioner’s “affidavit of truth” in the state district court. The state supreme court 4 concluded, inter alia: (a) that the state district court properly construed the state filing as a 5 request for habeas relief under state procedure; and (b) that the district court properly 6 concluded that it did not have power to consider the petition because petitioner failed to 7 establish that he was in custody of the State of Nevada given that he was a federal pretrial 8 detainee. The remittitur issued on January 4, 2012. It thus does not appear that dismissal 9 of the present matter without prejudice will be tantamount to a dismissal with prejudice 10 because of the application of the federal limitation period or other defenses. 11 Nothing herein precludes the Court from applying the fee payment provisions of the 12 Prison Litigation Reform Act (PLRA) to any purported habeas petition filed by petitioner, as 13 it did in No. 2:11-cv-01246-KJD-CWH. Petitioner is a frequent frivolous filer in this district, 14 and he may not circumvent the provisions of the PLRA by recasting a civil rights action 15 instead as a habeas petition. 16 IT THEREFORE IS ORDERED that the application (#1) to proceed in forma pauperis 17 is DENIED and that this action shall be DISMISSED without prejudice to the filing of a new 18 pleading in a new action with a properly completed pauper application. 19 IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of 20 reason would not find the Court’s action dismissing the improperly commenced action without 21 prejudice to be debatable or wrong. 22 23 24 The Clerk of Court shall enter final judgment accordingly in favor of respondents and against petitioner, dismissing this action without prejudice. DATED: March 5, 2012 25 26 27 _________________________________ KENT J. DAWSON United States District Judge 28 -2-

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