McClinton v. Gillespie et al

Filing 3

ORDER DISMISSING CASE without prejudice to the filing of a new petition in a new action. IT IS FURTHER ORDERED that Petitioner may file a new petition in a new action, but he may not file further documents in this action. The Clerk of the Court shall enter judgment accordingly. Signed by Judge Andrew P. Gordon on 04/16/2014. (Copies have been distributed pursuant to the NEF - CC: 2 Blank IFP, 2 Blank Habeas Petition from and Instructions to Plaintiff - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WARREN S. McCLINTON,
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Petitioner,
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vs.
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DOUG GILLESPIE, et al.,
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Respondents.
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____________________________________/

2:14-cv-00558-APG-VCF
ORDER

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254,
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by a Nevada state prisoner.
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When initiating a federal habeas corpus action, a petitioner must either submit the $5.00
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filing fee for habeas petitions or an application to proceed in forma pauperis. See 28 U.S.C. §
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1914(a); 28 U.S.C. § 1915. In this case, petitioner failed to submit either a filing fee or an
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application to proceed in forma pauperis with the petition.
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Additionally, the petition was not submitted on the Court’s approved form. The Local Rules
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of Court require petitioners appearing in pro se to file their petitions on the Court’s approved form.
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Local Rules of Special Proceedings 3-1 (“a petition for a writ of habeas corpus, filed by a person
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who is not represented by an attorney, shall be on the form provided by this court.”). The Clerk of
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Court will provide plaintiff with the approved form for filing a pro se petition for a writ of habeas

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corpus. Petitioner may file a new petition on the proper form by initiating a new action.

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Due to the lack of an in forma pauperis application or filing fee, the present action will be

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dismissed without prejudice to the filing of a new petition (using the court-approved form) in a new

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action with a pauper application containing all required attachments. It does not appear from the

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papers presented that a dismissal without prejudice would result in a promptly-filed new petition

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being untimely. In this regard, plaintiff at all times remains responsible for calculating the running

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of the limitations period as applied to his case and properly commencing a timely-filed habeas

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corpus action.

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IT THEREFORE IS ORDERED that this action is DISMISSED without prejudice to the
filing of a new petition in a new action.
IT IS FURTHER ORDERED that the Clerk of the Court shall send petitioner two copies of

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an in forma pauperis application form for a prisoner, one copy of the instructions for the same, two

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copies of a blank 28 U.S.C. § 2254 habeas petition form, and one copy of instructions for the same.

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IT IS FURTHER ORDERED that petitioner may file a new petition in a new action, but he
may not file further documents in this action.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.
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Dated this ______ day of April, 2014.

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UNITED STATES DISTRICT JUDGE
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