Bacon v. Reyes

Filing 13

ORDER Granting 12 Motion for Relief from 9 Judgment. The Order 8 and judgment 9 dismissing this action are VACATED, and this action is REINSTATED. IT IS FURTHER ORDERED that plaintiff shall file another application to proceed in forma paupe ris or pay the filing fee, accompanied by a copy of this order. The Clerk of Court to send plaintiff blank application. IT IS FURTHER ORDERED that the Clerk shall send to plaintiff a civil rights complaint form with instructions. Plaintiff will have 30 days to submit a complaint. Signed by Judge Gloria M. Navarro on 9/11/12. (Copies have been distributed pursuant to the NEF - cc: plaintiff - EDS)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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PERCY LAVAE BACON,

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Plaintiff,

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vs.

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Case No. 2:12-CV-01222-GMN-(VCF)

OSWALD REYES,

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ORDER

Defendant.

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Plaintiff has submitted a motion for relief from judgment (#12). The court will reinstate the

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action. Plaintiff will need to submit a new application to proceed in forma pauperis, complete with

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a statement of his inmate account and a financial certificate signed by the appropriate prison official,

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as required by 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2. Plaintiff also will need to submit a

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complaint on the court’s form, as required by Local Rule LSR 2-1.

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The court cannot determine at this point what defects exist in plaintiff’s claims, because

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plaintiff did not submit a complaint when he commenced this action. However, there is a defect in

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form, and there is a defect in the request for relief. Plaintiff has captioned this action as against

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“Oswald Reyes, et al.” Plaintiff will need to identify all defendants in the complaint. As for relief,

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plaintiff had asked in his motions for a permanent injunction or, in the alternative, a temporary

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restraining order (#5, #6), for a release from imprisonment to residential confinement or transitional

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housing. When plaintiff seeks release from incarceration, his sole federal remedy is through a

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petition for a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). The court

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does not have the power to grant plaintiff release in this type of action. Plaintiff will need to omit

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such a request in his complaint.

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IT IS THEREFORE ORDERED that plaintiff’s motion for relief from judgment (#12) is

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GRANTED. The order (#8) and judgment (#9) dismissing this action are VACATED, and this

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action is REINSTATED.

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IT IS FURTHER ORDERED that plaintiff shall file another application to proceed in forma

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pauperis, accompanied by a signed financial certificate and a statement of his inmate account. The

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clerk of the court shall send plaintiff a blank application form for incarcerated litigants. In the

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alternative, plaintiff shall make the necessary arrangements to pay the filing fee of three hundred

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fifty dollars ($350.00), accompanied by a copy of this order. Plaintiff shall have thirty (30) days

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from the date on which this order is entered to comply. Failure to comply will result in the

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dismissal of this action.
IT IS FURTHER ORDERED that the clerk shall send to plaintiff a civil rights complaint

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form with instructions. Plaintiff will have thirty (30) days from the date that this order is entered to

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submit a complaint. Failure to comply with this order will result in the dismissal of this action.

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IT IS FURTHER ORDERED that plaintiff shall place the case number, 2:12-CV-01222-

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GMN-(VCF), in the space provided on the complaint form.

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DATED this 11th day of September, 2012.

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_________________________________
Gloria M. Navarro
United States District Judge

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