Hawkins v. Lubbers

Filing 29

MEMORANDUM AND ORDER re:(12 in 4:13-cv-01246-ERW) MOTION for Reconsideration re (5) Memorandum & Order and (7) Order (Financial) filed by Petitioner Broderick K. Hawkins. IT IS HEREBY ORDERED that petitioner's "Motion to Challange thi s Court's Determination of U.S.C. Section 1915" 12 is GRANTED. IT IS FURTHER ORDERED that the Clerk of Court shall administratively close this cse and shall transfer the following documents to petitioner's underlying habeas corpus a ction, Hawkins v. Luebbers, No. 4:02CV793 ERW: ECF Nos. 1, 5, 8 and 11. IT IS FURTHER ORDERED that the Clerk of Court shall refund to petitioner his $2.05 initial partial filing fee and shall notify the Missouri Department of Corrections to susp end all future payments relative to the instant action. IT IS FURTHER ORDERED that the Clerk of Court shall file a copy of this Memorandum and Order in Hawkins v. Luebbers, No. 4:02CV793 (E.D. MO). Signed by District Judge E. Richard Webber on February 18, 2014. Associated Cases: 4:13-cv-01246-ERW, 4:02-cv-00793-ERW(MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BRODERICK K. HAWKINS,
Petitioner,
vs.
JEFF NORMAN,
Respondent.

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Case No. 4:13CV01246 ERW

MEMORANDUM AND ORDER
Before the Court is petitioner’s “Motion to Challenge this Court’s Determination
of U.S.C. § 1915,” concerning the assessment of a filing fee in this case [ECF No. 12].
As more fully set forth below, the Court will grant petitioner’s motion and will order the
Clerk of Court to administratively close this case.
On or about June 28, 2013, petitioner filed an “Affidavit of Facts to Support the
Motion Pursuant to Federal Rules of Civil Procedure 60(b)” [ECF No. 1] and a separate
motion for leave to proceed in forma pauperis [ECF No. 2]. Although the two
documents bore the cause number of petitioner’s former habeas corpus action, Hawkins
v. Norman, No. 4:02-CV-793-ERW (E.D. Mo.), the Clerk opened a new case file,
assigning a new cause number.

On November 16, 2013, the Court issued a

Memorandum and Order [ECF No. 5], granting petitioner in forma pauperis status and
assessing an initial partial filing fee of $2.05. In addition, the Court ordered petitioner

to show cause why this action should not be dismissed as time-barred. Petitioner
subsequently filed a motion for reconsideration of the calculation of his initial filing fee,
which the Court granted; petitioner was assessed a new filing fee of $1.77 [ECF No. 7].
On September 30, 2013, the Court received a payment from petitioner in the amount of
$2.05.
Liberally construing petitioner’s “Motion to Challenge this Court’s
Determination of U.S.C. § 1915," petitioner is claiming that his Rule 60(b) motion was
mistakenly filed as a new action and that he should not have been assessed a filing fee.
The Court agrees, and therefore, the Clerk will be ordered to administratively close this
action and transfer certain documents, as set forth below, to petitioner’s former habeas
case. Once this is accomplished, the Court will review petitioner’s response to this
Court’s September 16, 2013 show cause order [ECF No. 11].
Accordingly,
IT IS HEREBY ORDERED that petitioner’s “Motion to Challenge this Court’s
Determination of U.S.C. § 1915" [ECF No. 12] is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall administratively
close this case and shall transfer the following documents to petitioner’s underlying
habeas corpus action, Hawkins v. Luebbers, No. 4:02-CV-793-ERW (E.D. Mo.): ECF
Nos. 1, 5, 8, and 11.

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IT IS FURTHER ORDERED that the Clerk of Court shall refund to petitioner
his $2.05 initial partial filing fee and shall notify the Missouri Department of Corrections
to suspend all future payments relative to the instant action.
IT IS FURTHER ORDERED that the Clerk of Court shall file a copy of this
Memorandum and Order in Hawkins v. Luebbers, No. 4:02-CV-793-ERW (E.D. Mo.).
So Ordered this 18th day of February, 2014.

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E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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