Downing v. Attorney General State of Nevada et al

Filing 8

ORDER that 7 Motion for Reconsideration is GRANTED. The Dismissal Order and Clerk's Judgment 5 and 6 are SET ASIDE. The Clerk shall reopen this action, file and electronically serve the petition upon the respondents who will have 45 days from entry of this order to answer/respond. Signed by Judge Jennifer A. Dorsey on 8/6/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CURTIS L. DOWNING,
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Petitioner,

Case No. 2:13-cv-01576-JAD-VCF

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vs.
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ORDER

BRIAN WILLIAMS, et al.,
Respondents.

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This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a

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Nevada state prisoner. By order filed January 14, 2014, the Court dismissed this action because it

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appeared that petitioner failed to obey the Court’s order to submit the filing fee. (Doc. 5).

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Judgment was entered on January 15, 2014. (Doc. 6).

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Petitioner filed a motion for reconsideration pursuant to Rule 60(b) of the Federal Rules of

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Civil Procedure. (Doc. 7). Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final

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judgment or order for the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence, that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or other misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer equitable; or (6)
any other reason that justifies relief.
In the instant case, on October 23, 2013, the Court denied petitioner’s application to proceed

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in forma pauperis and directed petitioner to pay the $5.00 filing fee for this action. (Doc. 2).

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Petitioner filed a motion for an extension of time to pay the filing fee. (Doc. 3). On November 26,

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2013, the Court granted petitioner an additional thirty days in which to pay the filing fee. (Doc. 4).

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Petitioner’s $5.00 filing fee was due on December 26, 2013. Because it appeared that petitioner

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failed to obey the Court’s order directing payment of the filing fee, the Court dismissed this action

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by order filed January 15, 2014. (Doc. 5).

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Although the Court’s docket does not reflect the receipt of payment of the filing fee,

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petitioner contends in his motion for reconsideration that on November 19, 2013, he filled out the

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proper paperwork to have the prison issue a check to the Clerk of this Court for $5.00. Petitioner

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has attached to his motion a copy of his inmate account statement that supports his contention and

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confirms that a $5.00 payment was collected from his inmate account to satisfy the payment of the

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$5.00 filing fee in this action. (Doc. 7, at p. 4). The Court cannot explain why the Clerk of Court

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never received or processed the filing fee submitted by petitioner. Under the circumstances, the

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Court deems that petitioner has paid the filing fee, and petitioner’s motion for reconsideration is

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granted.

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The Court has reviewed the habeas petition in the instant action. Although petitioner has

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filed other habeas actions in this Court, those actions dealt with petitioner’s state court convictions.

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In the instant petition, petitioner challenges the result of a prison disciplinary hearing at which he

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alleges a denial of due process that affected his ultimate duration of incarceration. Thus, the petition

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is not successive, and it shall be served on respondents. Respondents shall file a response to the

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petition, as set forth at the conclusion of this order.

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IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (Doc. 7) is

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GRANTED. The dismissal order and judgment in this action (Docs. 5 & 6) are SET ASIDE.

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IT IS FURTHER ORDERED that the Clerk of Court SHALL REOPEN this action.

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IT IS FURTHER ORDERED that the Clerk of Court shall FILE and

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ELECTRONICALLY SERVE the petition (Doc. 1-1) upon the respondents.

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IT IS FURTHER ORDERED that respondents shall have 45 days from entry of this order

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to answer or otherwise respond to the petition. In their answer or other response, respondents shall

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address all claims presented in the petition. Respondents shall raise all potential affirmative

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defenses in the initial responsive pleading, including lack of exhaustion and procedural default.

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Successive motions to dismiss will not be entertained. If an answer is filed, respondents shall

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comply with the requirements of Rule 5 of the Rules Governing Proceedings in the United States
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District Courts under 28 U.S.C. §2254. If an answer is filed, petitioner shall have 45 days from the

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date of service of the answer to file a reply.

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IT IS FURTHER ORDERED that any state court record exhibits filed by respondents shall

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be filed with a separate index of exhibits identifying the exhibits by number or letter. The hard copy

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of all state court record exhibits shall be forwarded, for this case, to the staff attorneys in the Reno

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Division of the Clerk of Court.

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IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney

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General of the State of Nevada a copy of every pleading, motion, or other document he submits for

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consideration by the Court. Petitioner shall include with the original paper submitted for filing a

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certificate stating the date that a true and correct copy of the document was mailed to the Attorney

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General. The Court may disregard any paper that does not include a certificate of service. After

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respondents appear in this action, petitioner shall make such service upon the particular Deputy

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Attorney General assigned to the case.

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Dated this 6th day of August, 2014.
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NITED STATES DISTRIC
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TE ST T
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UNITED STATES DISTRICT JUDGE
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