Carden v. NDOC et al

Filing 3

ORDER - The IFP Application (ECF No. 1) is denied without prejudice. This action is dismissed without prejudice to the filing of a petition in a new action, accompanied by a new and properly completed application to proceed IFP with all required attachments. Petitioner is denied a certificate of appealability. Clerk shall send petitioner 2 copies of the IFP application form, 2 copies of the petition for writ of habeas corpus form, and the instructions for both forms, and a copy of the pa pers that he submitted in this case. (Forms and papers mailed 12/1/2016.) Clerk shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Judge Miranda M. Du on 12/1/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHANCE B. CARDEN,

Case No. 3:16-cv-00684-MMD-VPC

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Petitioner,

ORDER

v.
NEVADA DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.

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This case was initiated on November 23, 2016, by Chance B. Carden, a Nevada

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prisoner. On that date, Carden submitted an application to proceed in forma pauperis

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(ECF No. 1) for a habeas action, without also submitting a habeas petition. The Court has

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reviewed its records, and it does not appear that Carden has filed a petition separately in

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another action without a pauper application.

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A petitioner may not commence a federal action by filing only a pauper application

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unaccompanied by a pleading. Under Rule 12 of the Rules Governing Section 2254

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Proceedings, the Federal Rules of Civil Procedure generally apply to the extent not

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inconsistent with the habeas rules. Under Rule 3 of the Federal Rules of Civil Procedure,

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“[a] civil action is commenced by filing a complaint with the court.” Accordingly, Carden

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must submit a pleading to properly commence an action.

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Therefore, Carden's pauper application will be denied without prejudice, and the

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action will be dismissed without prejudice. This dismissal, in and of itself, is without

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prejudice to the filing of a new action. However, nothing in this dismissal precludes the

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dismissal of a later-filed action on the basis of, if applicable, untimeliness, lack of

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exhaustion, procedural default, or any other basis.

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It is therefore ordered that the Application to Proceed in Forma Pauperis (ECF No.
1) is denied without prejudice.

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It is further ordered that this action is dismissed without prejudice to the filing of a

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petition in a new action, accompanied by a new and properly completed application to

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proceed in forma pauperis with all required attachments.

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It is further ordered that petitioner is denied a certificate of appealability.

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It is further ordered that the Clerk of the Court send petitioner two (2) copies of the

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form application to proceed in forma pauperis for incarcerated persons, two (2) copies of

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the form petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254, the

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instructions for both forms, and a copy of the papers that he submitted in this case.

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It is further ordered that the Clerk of the Court enter final judgment accordingly,
dismissing this action without prejudice.

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DATED THIS 1st day of December 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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