Banks v. Warden et al

Filing 6

ORDER denying ECF No. 5 Motion to Vacate; a certificate of appealability, to the extent required in this procedural context, is DENIED; Clerk to add AG as counsel for respondent and e-serve AG with order; matter is referred to the W arden of the Northeast Ohio Correctional Center; Clerk directed to SEND copy of order to Warden La Rose (mailed 11/17/2017); Clerk directed to designate petitioner as restricted filer on docket and shall accept no further filings from petitioner other than a notice of appeal from this order and/or the order and judgment of dismissal . Signed by Judge Howard D. McKibben on 11/17/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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FREDERICK BANKS, as “Next Friend”
for O.J. Simpson,

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Petitioner,
vs.

3:17-cv-00452-HDM-VPC
ORDER

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WARDEN,
Respondent.

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This closed habeas matter under 28 U.S.C. § 2254 comes before the Court on

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petitioner’s motion (ECF No. 5) to vacate the order and final judgment of dismissal. The

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motion was filed within the time period for seeking relief under Rule 59 of the Federal Rules

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of Civil Procedure.

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The Court dismissed this action without prejudice because petitioner failed to properly

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commence the action by submitting a properly completed pauper application on the required

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form with all required financial attachments. The Court found that dismissal of the improperly-

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commenced action without prejudice would not result in substantial prejudice because the

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Ohio state inmate’s assertion of “next friend” standing to file a habeas petition for former

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Nevada state inmate O.J. Simpson was frivolous and fanciful on its face.

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Nothing in the present motion leads to a contrary conclusion either with regard to the

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basis for the dismissal without prejudice in the first instance or the Court’s finding regarding

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the absence of substantial prejudice.

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IT THEREFORE IS ORDERED that petitioner’s motion (ECF No. 5) to vacate is
DENIED.

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IT FURTHER IS ORDERED that a certificate of appealability, to the extent required in
this procedural context, is DENIED.

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IT FURTHER IS ORDERED, pursuant to Rule 4 of the Rules Governing Section 2254

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Cases, that the Clerk of Court shall make informal electronic service upon respondents by

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adding Nevada Attorney General Adam P. Laxalt as counsel for respondents and directing

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a notice of electronic filing of this order to his office. No response is required from

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respondents other than to respond to any orders of a reviewing court.

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IT FURTHER IS ORDERED that this matter is referred to the Warden of the Northeast

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Ohio Correctional Center for consideration of possible institutional disciplinary sanctions

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and/or loss of sentencing credits under Ohio law based upon the filing of a frivolous judicial

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proceeding. The Clerk accordingly shall SEND a copy of this order to:

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Mr. Christopher La Rose, Warden
Northeast Ohio Correctional Center
2240 Hubbard Road
Youngstown, Ohio 44505

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IT FURTHER IS ORDERED that the Clerk shall designate petitioner as a restricted filer

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on the docket sheet and shall accept no further filings from petitioner in this matter other than

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a notice of appeal from this order and/or the order and judgment of dismissal.

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DATED: November 16, 2017.

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__________________________________
HOWARD D. MCKIBBEN
United States District Judge

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