Chipeta v. Tagliatti et al

Filing 3

ORDERED that all pending motions are DENIED without prejudice and that this action shall be DISMISSED without prejudice to the filing of a new properly commenced action under a new docket number with either the required filing fee or a properly co mpleted application to proceed IFP. The Clerk of Court shall SEND plaintiff 2 copies each of a pauper form for prisoner and a civil rights complaint form, along with the instructions for the forms and a copy of all papers that he submitted. (Forms and docs mailed to P 9/10/2013.) Clerk shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Chief Judge Robert C. Jones on 7/9/2013. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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PACHALO C. CHIPETA,
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Plaintiff,

3:13-cv-00303-RCJ-VPC

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vs.
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ORDER
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JENNIFER TAGLIATTI , et al.,
Defendants.

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This prisoner civil rights action comes before the Court for initial review.

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Plaintiff failed to properly commence this action by submitting an application to proceed

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in forma pauperis on the required form. Under Local Rule LSR 1-1, a person seeking pauper

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status must file an application on the Court’s required form. Plaintiff did not do so. Filing only

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a financial certificate and an inmate account statement does not satisfy the requirement that

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the plaintiff use the required pauper application form, with the required acknowledgments and

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declaration contained therein.

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The Court will dismiss this improperly-commenced action without prejudice. It does

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not appear that a dismissal without prejudice will materially impact the analysis of any statute

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of limitations issue or other issues in a promptly filed and properly commenced new federal

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action or otherwise result in substantial prejudice.1

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Plaintiff’s civil rights complaint necessarily challenges the validity of his 2008 state conviction for first
degree murder with the use of a deadly weapon. He names as defendants the state court district judge who
presided over his criminal trial, the district attorney, his public defenders, and the detectives who investigated

(continued...)

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IT THEREFORE IS ORDERED that all pending motions are DENIED without prejudice

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and that this action shall be DISMISSED without prejudice to the filing of a new properly

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commenced action under a new docket number with either the required filing fee or a properly

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completed application to proceed in forma pauperis. The Clerk of Court shall SEND plaintiff

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two copies each of a pauper form for prisoner and a civil rights complaint form, along with the

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instructions for the forms and a copy of all papers that he submitted.

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The Clerk shall enter final judgment accordingly, dismissing this action without
prejudice.
DATED: July 9, 2013

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___________________________________
ROBERT C. JONES
Chief United States District Judge

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(...continued)

the murder. He seeks, inter alia, “a complete/full discharge from prison” along with damages for each day
that he has spent in prison. Plaintiff’s claims thus would appear to be either: (a) barred under Heck v.
Humphrey, 512 U.S. 477 (1994), as not cognizable unless and until his conviction is overturned via, inter alia,
post-conviction or habeas relief, which by definition has not occurred; or (b) barred on their face by the
applicable two-year statute of limitations to any arguendo extent that the claims otherwise would have been
cognizable notwithstanding Heck. A dismissal without prejudice of the present improperly commenced action
will not materially impact the analysis of such issues in a promptly filed and properly commenced new action.
The Court additionally notes that the one-year limitation period for bringing a federal habeas action
has expired on its face, absent additional tolling or delayed accrual. The online docket records of the state
courts reflect that plaintiff’s state post-conviction proceedings concluded more than one year prior to the
constructive filing date of the present action. Thus, even without considering any running of the limitation
period prior to those proceedings, the federal limitation period has expired on its face, absent additional tolling
or delayed accrual. The dismissal of this improperly commenced civil rights action without prejudice therefore
will not have any material indirect impact with regard to the limitation analysis in any later habeas action.
Plaintiff at all times remains responsible for calculating the applicable limitations periods and properly
and timely commencing an action for appropriate relief. The fact that the incarcerated plaintiff is not currently
represented by counsel, in and of itself, does not excuse plaintiff from the requirements of properly and timely
commencing an action for appropriate relief. Plaintiff previously was provided copies of the pauper form and
instructions in January 2012 in No. 3:11-cv-0903-RCJ-WGC, when he failed to properly commence that civil
rights action. Even if those copies arguendo have been lost or destroyed in the interim, replacement forms
are available through the prison law library by sending an inmate request form, or “kite.” Plaintiff, again, at all
times remains responsible for calculating the limitations periods and properly and timely commencing an
action for appropriate relief.

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