United States District Court, D. Nevada
C. MAHAN, UNITED STATES DISTRICT JUDGE.
habeas matter under 28 U.S.C. § 2254 by a Nevada state
inmate comes before the court on petitioner's application
(ECF No. 1) to proceed in forma pauperis and for
papers presented are subject to multiple defects.
petitioner did not properly commence the action by either
paying the $5.00 filing fee or filing a properly completed
application to proceed in forma pauperis with all
required attachments. Under LSR 1-2 of the local rules,
petitioner must attach both a financial certificate executed
by an authorized institutional officer and a statement of his
inmate account for the prior six months. Petitioner did not
attach a copy of an executed financial certificate, and the
financial document that he submitted is not a statement of
his inmate account for the prior six months. He must fully
comply with all requirements of the local rule in order to
properly commence a civil action with a pauper
petitioner did not name a proper respondent. Petitioner did
not name his immediate custodian as a respondent, and he
improperly named the State of Nevada as a respondent.
Petitioner must name his immediate custodian, i.e.,
the warden of his prison, as a respondent. See generally
Rumsfeld v. Padilla, 542 U.S. 426 (2004). Moreover,
petitioner may not proceed directly against the State of
Nevada due to the state sovereign immunity recognized by the
eleventh amendment. State sovereign immunity bars an action
against the state or an arm of the state in federal court
regardless of the relief sought. See, e.g., Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89,
petitioner did not use the court's required § 2254
petition form to state his claims. Under LSR 3-1 of the local
rules, he must use the court's required petition form.
Petitioner instead used the first pages and the last page
from the form essentially as a cover document for what
appears to have been a filing in the state supreme court
along with additional state court record materials. The state
court document includes extensive extraneous material that is
not pertinent to or appropriate for a federal habeas
petition. The included document additionally does not include
information that is required by the federal petition form,
such as with regard to exhaustion. Petitioner essentially has
disregarded the requirement of the local rule that he use the
court's petition form to state his federal claims. He
instead must use the form, and only the form, to state his
claims, per the local rule.
these multiple substantial defects, the petition in this
improperly-commenced action will be dismissed without
prejudice. It does not appear that a dismissal without
prejudice would materially impact the analysis of
successive-petition and untimeliness issues in a
promptly-filed and properly-commenced new action. The court
previously summarized prior state and federal proceedings by
petitioner on June 23, 2014, in ECF No. 12 in No.
2:13-cv-02195-GMN-VCF. That summary reflects that: (a) the
current petition would appear to be a successive petition
given that the court denied petitioner's federal petition
challenging the same judgment of conviction in No.
3:01-cv-00525-DWH-RAM on the merits on August 17,
2004; and (b) the current petition is putatively
untimely by well over a decade. Accordingly, the dismissal of
this improperly-commenced action without prejudice will not
materially impact the adjudication of issues in this regard
in a promptly-filed and properly-commenced new action, or
otherwise result in substantial prejudice.
THEREFORE IS ORDERED that the application (ECF No. 1) to
proceed in forma pauperis is DENIED without
prejudice and that the petition shall be DISMISSED without
prejudice to the filing of a new petition and new pauper
application with all required financial attachments in a new
civil action under a new docket number.
FURTHER IS ORDERED that a certificate of appealability is
DENIED, as jurists of reason would not find the dismissal of
this improperly-commenced action without prejudice to be
either debatable or incorrect, given the absence of any
substantial prejudice to petitioner from the dismissal
clerk of court shall SEND petitioner with this order two
copies each of a § 2254 petition form and an inmate
pauper application form along with one copy each of the
instructions for each form and of the papers submitted in
clerk shall enter final judgment accordingly, dismissing this
action without prejudice.
The financial document attached
concerns a one-month period, and petitioner clearly has been
in custody of the state corrections department for much
longer than six months. Petitioner has filed ten civil
actions in this court, including eight habeas petitions.
Several actions have been dismissed as improperly commenced,