PIERRECIUS v. DEPARTMENT OF HOMELAND SECURITY, No. 2:2014cv00709 - Document 6 (D.N.J. 2014)
Court Description: MEMORANDUM OPINION AND ORDER dismissing the petition for writ of habeas corpus, w/out prejudice; directing the Clerk to reopen a new and separate matter for Petitioner under 42 U.S.C. 1983 designating "Kelly Pierrecius" as pltf. and "R oy L. Hendricks" as deft.; directing the Clerk to docket this memorandum and order along with the Amended Petition (Dkt. No. 5) in the new matter; directing the Clerk to serve petitioner with the memorandum and order along with a blank form 28U.S.C. 2241 petition, a blank 42U.S.C. complt., a blank application to proceed in forma pauperis with a copy of the docket sheet generated in the new matter, etc.. Signed by Judge Faith S. Hochberg on 3/26/2014. (nr, )
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NOT FOR PUBLICATION CLOSED UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ___________________________________ : KELLY PIERRECIUS, : Hon. Faith S. Hochberg : Petitioner, : Civil No. 14-0709 (FSH) : v. : MEMORANDUM OPINION : AND ORDER DEPARTMENT OF HOMELAND : SECURITY, : Date: March 26, 2014 : Respondent. : ___________________________________ : HOCHBERG, District Judge: This matter having come before the Court upon pro se Petitioner s filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ' 2241 and Petitioner having paid the $5 filing fee; and It appearing that the matter was previously dismissed for failure to name the warden, an indispensable party, as a respondent; and It appearing that Petitioner has now filed an amended petition naming the warden as respondent; and It appearing that although Petitioner indicates that this case concerns immigration proceedings, he has not provided the Court with the facts necessary to assess his challenge to ongoing detention awaiting removal from the United States under 28 U.S.C. § 2241; and It appearing that Petitioner raises, as the sole ground of his petition, claims related to alleged cruel and unusual punishment in violation of the 8th Amendment of the United States Constitution and such claims appear to be more properly brought under 42 U.S.C. § 1983; and The Court will allow Petitioner leave to amend this pleading and also to file a 42 U.S.C. § 1983 Complaint in which he may bring his claims related to medical care; therefore IT IS on this 26th day of March, 2014, hereby ORDERED that the Petition for Writ of Habeas Corpus shall be DISMISSED without prejudice; and it is further ORDERED that if Petitioner wishes to proceed with this petition for writ of habeas corpus pursuant to 28 U.S.C. ' 2241 as a challenge to his ongoing detention related to removal proceedings, Petitioner shall, within thirty days of the date of entry of this order, file an amended petition providing appropriate grounds for relief related to such a claim; and it is further ORDERED that the Clerk of the Court shall commence a new and separate matter for Petitioner under 42 U.S.C. § 1983 designating KELLY PIERRECIUS as Plaintiff and ROY L. HENDRICKS as Defendant, Cause as 42:1983 Prisoner Civil Rights and Nature of Suit as 550 Prisoner: Civil Rights and shall assign that new matter to the undersigned; and it is further ORDERED that the Clerk of the Court shall docket this Memorandum Opinion and Order, along with a copy of Petitioner s Amended Petition (Dkt. No. 5), in the new matter; and it is further ORDERED that the Clerk of the Court shall terminated that new matter by making a new and separate entry on the docket of that matter reading CIVIL CASE ADMINISTRATIVELY TERMINATED ; and it is further 2 ORDERED that Petitioner may reopen that new matter by, within thirty days from the date of entry of this Order, (1) either paying the appropriate fees or providing a completed application to proceed in forma pauperis and (2) filing an amending pleading setting forth his grounds for relief under 42 U.S.C. § 1983; and it is further ORDERED that the Clerk of the Court serve this Memorandum Opinion and Order upon Petitioner by regular U.S. mail, together with a blank form to be used in the filing of a 28 U.S.C. § 2241 petition, a blank form to be used in the filing of a 42 U.S.C. § 1983 complaint, a blank form application to proceed in forma pauperis, and enclose in the mailing a copy of the docket sheet generated in the new matter which was opened for Petitioner; and it is further ORDERED that the Clerk of the Court shall close the file in this matter. s/ Faith S. Hochberg Hon. Faith S. Hochberg, U.S.D.J. 3
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