Christian v. Lombardo et al

Filing 11

ORDER Granting Petitioner's 1 Motion/Application for Leave to Proceed in forma pauperis.The Clerk shall detach and file the 1 -1 Petition. FURTHER ORDERED that the Petition is Dismissed and that the Petitioner is denied a certificate o f appealability. Petitioner's 3 Motion to Stay, 6 Motion for Magistrate Ruling, 7 Motion for Inmate Relocation, 8 Motion for Surgery, 9 Motion for Judgment, and 10 Motion for Summary Judgment are all Denied. The Clerk shall enter judgment accordingly and close this case. Signed by Judge James C. Mahan on 11/6/17. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 ERIC CHRISTIAN, Case No. 2:17-cv-01709-JCM-PAL 10 Petitioner, ORDER v. 11 JOE LOMBARDO, et al., 12 Respondents. 13 14 Eric Christian has filed what he styled an appeal of federal criminal conviction 15 and state concurrent custody (ECF No. 1-1). His application to proceed in forma 16 pauperis (ECF No. 1) shall be granted. His purported petition is defective in several 17 respects and shall be dismissed. 18 First, the pleading is not on any of the court’s forms. LSR 3-1, 4-1. Second, 19 while Christian refers to a state-court case, which would potentially implicate his rights 20 under 28 U.S.C. § 2241 or § 2254, he sets forth no grounds alleging that he is in 21 custody pursuant to a state-court judgment in violation of his federal constitutional 22 rights. § 2254(a). Third, Christian indicates that he seeks to challenge his federal 23 criminal conviction in case no. 2:09-cr-00303-RFB-VCF-1. In order to challenge a 24 federal criminal conviction, Christian must file a § 2255 motion to vacate, set aside or 25 correct that sentence. A § 2255 motion is to be filed in the underlying federal criminal 26 case itself. Christian apparently is aware that the proper course is a § 2255 motion, 27 because he has in fact filed such motion, and it is pending in his federal criminal case 28 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 (2:09-cr-00303-RFB-VCF-1, ECF No. 408). Accordingly, this action shall be dismissed for failure to state a claim for which relief may be granted. The court finally notes that Christian has filed a motion for surgery (ECF No. 8). If Christian claims that the actions or inactions of prison personnel constitute deliberate indifference to his serious medical needs, he must file a 42 U.S.C. § 1983 civil rights complaint. IT IS THEREFORE ORDERED that Christian’s application to proceed in forma pauperis (ECF No. 1) is GRANTED. IT IS FURTHER ORDERED that the Clerk shall detach and file the petition (ECF No. 1-1). IT IS FURTHER ORDERED that the petition is DISMISSED. IT IS FURTHER ORDERED that the petitioner is denied a certificate of appealability. IT IS FURTHER ORDERED that the following motions filed by petitioner: motion to stay (ECF No. 3); motion for magistrate ruling (ECF No. 6); motion for inmate relocation (ECF No. 7); motion for surgery (ECF No. 8); motion for judgment (ECF No. 9); and motion for summary judgment (ECF No. 10) are all DENIED. IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case. 20 21 22 DATED: 3 November 2017. November 6, 2017. 23 24 JAMES C. MAHAN UNITED STATES DISTRICT JUDGE 25 26 27 28 2

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