Strohmetz v. Collins

Filing 3

ORDER DISMISSING CASE without prejudice. A certificate of appealability is DENIED. Signed by Judge James C. Mahan on 10/9/2013. (Copies have been distributed pursuant to the NEF; CC: petitioner with required forms - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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RICHARD LAWRENCE STROHMETZ,
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Petitioner,

2:13-cv-01614-JCM-NJK

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vs.
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ORDER
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CHARLOTTE COLLINS, et al.,
Respondents.

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On September 4, 2013, petitioner, who is a federal detainee being held at the Nevada Southern

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Detention Center, submitted a habeas petition pursuant to 28 U.S.C. § 2241. His allegations involved

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denied medical care.

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Petitioner did not pay the filing fee or submit an application to proceed in forma pauperis. He

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did, however, write to the clerk of court acknowledging this deficiency and asking if the matter could

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be “held until this informa pauperis [sic] catches up to it?” ECF No. 2. More than thirty days have

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since elapsed and no filing fee or pauper application has been submitted. Because the matter has not

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been properly commenced and because there does not appear to be any statute of limitations issues

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which would jeopardize petitioner’s ability to bring his claims in a new action which would include the

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necessary fee or form, the action shall be dismissed without prejudice.

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The court notes that the form of petitioner’s claims implicate a proceeding under Bivens v. Six

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Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971), concerning the conditions of his

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confinement rather than a habeas action designed to attack the fact or length of his confinement. Under

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Bivens,victims of a constitutional violation by a federal agent have a right to recover damages against

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the official in federal court despite the absence of any statute conferring such a right. See Carlson v.

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Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471 (1980). As an aid to this pro se petitioner, the clerk will

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be directed to send a copy of a civil rights complaint form that petitioner may use as a template for any

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Bivens complaint he may wish to pursue.

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IT THEREFORE IS ORDERED that this action shall be DISMISSED without prejudice to the
filing of a new petition in a new action with a properly completed pauper application.

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IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of reason

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would not find the court’s dismissal of this improperly commenced action without prejudice to be

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debatable or incorrect.

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IT FURTHER IS ORDERED that the clerk shall send petitioner two copies each of an

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application form to proceed in forma pauperis for incarcerated persons and a noncapital Section 2241

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habeas petition form, one copy of a § 1983 civil rights complaint form, one copy of the instructions for

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each form, and a copy of the papers that he submitted in this action.

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The clerk shall enter final judgment accordingly in favor of respondents and against petitioner,
dismissing this action without prejudice.
DATED: October 9, 2013.

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__________________________________
JAMES C. MAHAN
UNITED STATES DISTRICT JUDGE

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