Oliver v. Cox et al

Filing 3

ORDER Denying 1 Application for Leave to Proceed in forma pauperis. Denying 2 Motion to Appoint Counsel. This action is DISMISSED without prejudice. Signed by Judge James C. Mahan on 11/27/2012. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

5
6
7

TERRANCE L. OLIVER,
8
Plaintiff,

2:12-cv-01029-JCM-CWH

9
vs.
10
ORDER
11
12

JAMES G. COX, et al.
Defendants.

13
14

Plaintiff, a Nevada state inmate, has filed an application (#1) to proceed in forma

15

pauperis seeking to initiate a civil rights action along with a motion (#2) for appointment of

16

counsel.

17

Plaintiff has not submitted a proper application to proceed in forma pauperis. Under

18

28 U.S.C. § 1915(a)(2) and LSR 1-1 and LSR 1-2 of the local rules, a plaintiff must submit an

19

application on the court’s required form. The plaintiff must use the current version of the form,

20

which was revised effective July 21, 2008. In the present case, plaintiff used pages from

21

either a superceded version of the form and/or a “homemade” version of the required form.

22

The financial certificate in particular clearly is from a superceded version of the form.

23

It does not appear from review of the allegations presented that a dismissal without

24

prejudice would materially impact the analysis of the timeliness issue or other issues as to a

25

promptly-filed new action.1

26
27
28

1

From the allegations presented, it appears subject to substantial question whether the action is
cognizable in a federal civil rights action as opposed to a federal habeas action following exhaustion of state
judicial remedies. Petitioner is seeking to challenge administrative action that he alleges deprived him of 540

(continued...)

IT THEREFORE IS ORDERED that the application (#1) to proceed in forma pauperis

1
2

is DENIED without prejudice.
IT FURTHER IS ORDERED that the motion (#2) for appointment of counsel is DENIED

3
4

without prejudice.

5

IT FURTHER IS ORDERED that this action is DISMISSED without prejudice to the

6

filing of a new complaint in a new action together with either the required $350.00 filing fee

7

or a properly completed application to proceed in forma pauperis on the proper form and with

8

all required, and new, financial attachments.

9

IT FURTHER IS ORDERED that the clerk shall SEND plaintiff two copies each of an

10

in forma pauperis application form for a prisoner and a § 1983 complaint form, one copy of

11

the instructions for each form, and one copy of the papers that plaintiff submitted in this

12

action.

13
14

The clerk shall enter final judgment accordingly, dismissing this action without
prejudice.
DATED: November 27, 2012.

15
16
17

__________________________________
JAMES C. MAHAN
United States District Judge

18
19
20
21
22
23
24
25
26
27
28

1

(...continued)

days of sentencing credit. As plaintiff’s claims appear to necessarily challenge the length and duration of his
confinement, it would appear that he may not proceed via a federal civil rights action at this juncture. In the
final analysis, it is plaintiff’s responsibility to timely seek relief in an appropriate procedural vehicle in a proper
court. The court leaves a definitive resolution of any such issues to a properly-commenced federal action.
The court notes these issues only in determining that a dismissal without prejudice of the present improperlycommenced action will not materially impact the consideration of such issues in a promptly-filed new action.

-2-