Villanueva v. Hoffman et al

Filing 7

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND DENYING LEAVE TO PROCEED WITHOUT PAYMENT OF FEES AS A VETERAN re 5 , 6 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/21/2014. (emt, )CERTIFICATE OF SERVICEPa rticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Gerald Villanueva served by first class mail at the address of record on November 21, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD VILLANUEVA, #A4005447

)
)
)
Plaintiff,
)
vs.
)
)
MICHAEL S. HOFFMAN, NOLAN
)
ESPINDA, NOLAN UEHARA, MONTE )
McCOMBER,
)
)
)
Defendants.
_____________________________ )

CIV. NO. 14-00461 SOM/KSC
ORDER DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS AND
DENYING LEAVE TO PROCEED
WITHOUT PAYMENT OF FEES AS A
VETERAN

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND
DENYING LEAVE TO PROCEED WITHOUT PAYMENT OF FEES AS A VETERAN
On October 16, 2014, this court denied Plaintiff’s
request for in forma pauperis status and dismissed this prisoner
civil rights action without prejudice pursuant to 28 U.S.C.
§ 1915(g).

Plaintiff was told he could move to reopen the case

within twenty-eight days with concurrent payment of the filing
fee, or he could commence a new action with concurrent payment of
the filing fee.

See Doc. No. 3, PageID #36.

Before the court is

Plaintiff’s Motion to Proceed In Forma Pauperis and Motion to
Proceed as a Veteran, without payment of fees or costs under
Supreme Court Rule 40(1).

Doc. Nos. 5, 6.

Plaintiff first argues that, because he was granted in
forma pauperis status in Villanueva v. Hawaii, Civ. No. 14-00233
JMS, it should be granted in this case.

Plaintiff is incorrect.

Civil No. 14-00233 JMS was a petition for writ of habeas corpus.
Section 1915(g)’s restrictions on proceeding in forma pauperis do

not apply to prisoners seeking habeas relief, however.

See

Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005).
Plaintiff next seeks leave to proceed without payment
of fees as a veteran, pursuant to Supreme Court Rule 40(1).

The

Supreme Court Rules are rules of procedure for the United States
Supreme Court.

They do not generally apply to the district or

appellate courts and they do not supercede statutes, such as 28
U.S.C. § 1915(g).

Moreover, Rule 40(1)’s waiver of fees for

veterans is restricted to veterans who are “suing under any
provision of law exempting veterans from the payment of fees or
court costs.”

Sup. Ct. R. 40(1).

Plaintiff challenges the

conditions of his confinement relating to a prison disciplinary
hearing and does not seek relief under any law that exempts
veterans from the payment of fees.
Plaintiff’s Motions are DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 21, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Villanueva v. Hoffman, Civ. No. 14-00461 SOM/KSC; 3 stks/2014/Villanueva 14-461;
J:\PSA Draft Ords\SOM\Villanueva 14-461 som (dny ifp again, no file as veteran).wpd

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