Gatbonton v. Napolitano et al

Filing 2

ORDER that this action shall be DISMISSED without prejudice. The Clerk shall enter final judgment accordingly. Signed by Judge Miranda M. Du on 11/5/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DEXTER GATBONTON,

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Case No. 2:12-cv-01858-MMD-PAL
Petitioner,

ORDER

v.
JANET NAPOLITANO, et al.,
Respondent.

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This represented immigration habeas matter under 28 U.S.C. § 2241 comes
before the Court for initial review under 28 U.S.C. § 2243.

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In Case No. 2:12-cv-01439-JCM-CWH, the Court dismissed a petition without

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prejudice that presented a virtual photocopy of the papers filed in the current action.

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While the papers contained a number of deficiencies, the Court dismissed the prior

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action after petitioner failed to amend the petition to name his immediate custodian as a

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respondent after being given an opportunity to do so.

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The papers currently on file are virtually a photocopy of the prior papers, right

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down to the continuing improper designation of the Court as the “Southern District of

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Nevada,” a court which does not exist. The only difference in the two cases is that the

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supplemental brief is docketed as the petition in this case and the petition as the

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supplement, whereas the reverse was true in the prior action.

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Most significantly, however, the present petition does not name petitioner’s

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immediate custodian as a respondent. Petitioner’s counsel might consider whether it is

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beneficial to his client’s interests to file the same defective papers in a second action

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and expect a different result. It is a waste of time for all concerned, including this Court.

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This action therefore will be dismissed without prejudice. The Court does so

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given that: (a) petitioner failed to amend the prior petition after being given an

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opportunity to do so and instead sought to avoid the Court’s order in the prior case by

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filing the same defective papers again in this action; and (b) a new and properly

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commenced action will not be subject to a time-bar or other preclusion given the nature

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of the underlying claims challenging petitioner’s continued immigration detention.

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Counsel should assume that similar efforts to circumvent the Court’s ruling in the prior

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case by filing the same papers in a new action will lead to the same outcome.
IT IS THEREFORE ORDERED that this action shall be DISMISSED without
prejudice.
The Clerk of Court shall enter final judgment accordingly.

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DATED THIS 5th day of November 2012.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE