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Vontress v. Nevens

United States District Court, D. Nevada

June 26, 2014

GEORGE VONTRESS, Petitioner,
v.
WARDEN NEVENS, et al., Respondents.

ORDER

JAMES C. MAHAN, District Judge.

This action brought by a Nevada state inmate comes before the court for initial review of the papers presented, in which petitioner seeks relief under Rule 60(b)(4) of the Federal Rules of Civil Procedure from an order or judgment issued by a state district court, as well as on petitioner's application (#1) to proceed in forma pauperis.

The papers presented are subject to multiple substantial defects.

First, the pauper application is completed for a habeas action, with a $5.00 filing fee, but petitioner has not tendered papers that would commence a habeas action. He instead has sought to commence a different proceeding in which he seeks to set aside a state court judgment under Rule 60(b)(4). Under 28 U.S.C. ยง 1914(a), "[t]he clerk... shall require the parties instituting any civil action, suit or proceeding... whether by original process, removal or otherwise, to pay of filing fee of $350, except that on application for a writ of habeas corpus the filing fee shall be $5." Given the papers that petitioner filed, he would have to pay the $350.00 filing fee for a civil action or seek to pay that fee in installments under the Prison Litigation Reform Act. Although the clerk docketed the action as a habeas action, petitioner did not file a petition for a writ of habeas corpus. The pauper application therefore will be denied without prejudice along with the dismissal of the action.[1]

Second, a litigant must file a pleading to commence a federal civil action, regardless of whether the action is, for example, a civil rights action or a habeas action. A litigant may not commence a federal action simply by filing a motion. Petitioner filed neither a complaint nor a petition in this case.

Third, Rule 60(b)(4) does not provide a basis for challenging a state court judgment. Rule 60(b)(4) applies only in federal courts and provides a basis for filing a motion in a federal court action challenging a federal judgment or order. Neither Rule 60(b)(4) nor any other provision cited by petitioner in his motion provides a basis for challenging a state court judgment or order by a motion in a federal civil action.[2]

Fourth, the relief sought - federal court review of a state court judgment under Rule 60(b)(4) - would constitute an exercise of appellate jurisdiction by this lower federal district court over the state courts. A federal district court does not have appellate jurisdiction over a state court, whether by direct appeal, mandamus, and/or an exercise of supervisory jurisdiction. See, e.g. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003). If petitioner wishes to seek collateral review in federal court of his conviction, he must file a petition for a writ of habeas corpus. He may not seek such federal review of a state court judgment or judgments in a federal civil action other than in a habeas action. A motion under Rule 60(b)(4), again, is not a habeas action.

Fifth, to the extent that petitioner is seeking to challenge his judgment of conviction other than through a habeas petition, the civil action is barred under Heck v. Humphrey, 512 U.S. 477 (1994). An inmate may not pursue claims that necessarily challenge the validity of a conviction in a civil action other than a federal habeas action. Id.

Due to these multiple defects, this improperly-commenced action will be dismissed without prejudice.

It does not appear that a dismissal without prejudice to a new action would materially impact adjudication of any issue of substance in a promptly filed new action or otherwise cause substantial prejudice.[3]

IT THEREFORE IS ORDERED that petitioner's application (#1) to proceed in forma pauperis is DENIED without prejudice and that this action shall be DISMISSED without prejudice.

IT FURTHER IS ORDERED that, to the extent required in this procedural context, a certificate of appealability is DENIED. Jurists of reason would not find the dismissal of this improperly-commenced action to be either debatable or incorrect, given the absence of any substantial prejudice to petitioner from the dismissal without prejudice. See text, at 2 and n.3.

The clerk of court shall SEND petitioner: (a) two copies each of the forms for a pauper application for an incarcerated person, a noncapital habeas petition form, and a civil rights complaint form; (b) one copy of the instructions for the forms; and (c) one copy of the papers that he filed.

The clerk shall enter final judgment accordingly, dismissing this action without prejudice.


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