Brewer v. Kelley

Filing 9

ORDER directing the Clerk of the Court to send Brewer and application to proceed without prepayment of fees and affidavit (Form AO 240). Brewer must on or before 2/5/2018 either file the completed application, including the Certificate of Prisoner Ac counts, or pay the $5.00 filing fee in full. Service is not appropriate at this time. The Clerk of the Court is directed to change the Respondent to Wendy Kelley, Director, Arkansas Department of Correction. Signed by Magistrate Judge J. Thomas Ray on 1/5/2018. (jak)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
NICKLELAS NECESSITY BREWER
ADC #116152
VS.

PETITIONER

NO. 3:17-CV-00341 BSM/JTR

BOWIE COUNTY, TEXAS

RESPONDENT
ORDER

Nicklelas Necessity Brewer, an Arkansas Department of Correction (“ADC”)
inmate who is currently incarcerated in the Bowie County Correctional Center in
Texarkana, Texas, has filed a Petition for Writ of Habeas Corpus.1 (Doc. 1.) The
Petition was not accompanied by the filing fee or a request to proceed in forma
pauperis.2
In addition, the Petition names “Bowie County, Texas” as the sole
Respondent. The correct Respondent is Wendy Kelley, the ADC Director, who is
the state officer having custody of Brewer. See 28 U.S.C. § 2242 (habeas petition

Brewer filed the Petition in the United States District Court for the Eastern District of
Texas. (Doc. 1.) On December 28, 2017, that Court transferred the case to the Eastern District of
Arkansas, Jonesboro Division, the federal judicial district where Brewer was convicted. (Docs. 5,
7 & 8.)
1

See Rule 3(a), Rules Governing § 2254 Cases in United States District Courts (providing
that a habeas petition “must be accompanied” by the applicable filing fee or “a motion for leave to
proceed in forma pauperis, the affidavit required by 28 U.S.C. § 1915, and a certificate from the
warden or other appropriate officer of the place of confinement showing the amount of money or
securities that the petitioner has in any account in the institution”).
2

must name “the person who has custody over [the petitioner] and by virtue of what
claim or authority”); Rule 2(a), Rules Governing § 2254 Cases in United States
District Courts.
IT IS THEREFORE ORDERED THAT:
1.

The Clerk of the Court is directed to send Brewer an Application to

Proceed Without Prepayment of Fees and Affidavit (Form AO 240).
2.

If Brewer wishes to continue with this action, he must, on or before

February 5, 2018, either: (a) file the completed Application, including the
Certificate of Prisoner Accounts;3 or (b) pay the $5.00 filing fee, in full.4 The Court
advises Brewer that, if he fails to timely and properly comply with this Order, this
habeas action will be dismissed, without prejudice, pursuant to Local Rule
5.5(c)(2).5

3

The Certificate must be signed by an authorized officer at the incarcerating facility.

Brewer’s payment must clearly indicate that it is for payment of the filing fee in this
action, Brewer v. Kelley, No. 3:17-CV-00341-BSM/JTR.
4

Rule 5.5(c)(2) of the Local Rules of the United States District Court for the Eastern and
Western Districts of Arkansas, provides: "It is the duty of any party not represented by counsel to
promptly notify the Clerk and the other parties to the proceedings of any change in his or her
address, to monitor the progress of the case, and to prosecute or defend the action diligently. A
party appearing for himself/herself shall sign his/her pleadings and state his/her address, zip code,
and telephone number. If any communication from the Court to a pro se plaintiff is not responded
to within thirty (30) days, the case may be dismissed without prejudice. Any party proceeding pro
se shall be expected to be familiar with and follow the Federal Rules of Civil Procedure."
(emphasis added.) See also Fed. R. Civ. P. 41(b) (district court may dismiss case for failure to
prosecute or comply with court orders); § 2254 Rule 12 (applicability of Federal Rules of Civil
Procedure in habeas proceedings).
5

2

3.

Service of the Petition is not appropriate at this time.

4.

The Clerk of the Court is directed to change the Respondent to Wendy

Kelley, Director, Arkansas Department of Correction.
DATED THIS 5th day of January, 2018.

____________________________________
UNITED STATES MAGISTRATE JUDGE

3