Banks v. Warden et al
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)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
FREDERICK BANKS, as “Next Friend”
for O.J. Simpson,
This closed habeas matter under 28 U.S.C. § 2254 comes before the Court on
petitioner’s motion (ECF No. 5) to vacate the order and final judgment of dismissal. The
motion was filed within the time period for seeking relief under Rule 59 of the Federal Rules
of Civil Procedure.
The Court dismissed this action without prejudice because petitioner failed to properly
commence the action by submitting a properly completed pauper application on the required
form with all required financial attachments. The Court found that dismissal of the improperly-
commenced action without prejudice would not result in substantial prejudice because the
Ohio state inmate’s assertion of “next friend” standing to file a habeas petition for former
Nevada state inmate O.J. Simpson was frivolous and fanciful on its face.
Nothing in the present motion leads to a contrary conclusion either with regard to the
basis for the dismissal without prejudice in the first instance or the Court’s finding regarding
the absence of substantial prejudice.
IT THEREFORE IS ORDERED that petitioner’s motion (ECF No. 5) to vacate is
IT FURTHER IS ORDERED that a certificate of appealability, to the extent required in
this procedural context, is DENIED.
IT FURTHER IS ORDERED, pursuant to Rule 4 of the Rules Governing Section 2254
Cases, that the Clerk of Court shall make informal electronic service upon respondents by
adding Nevada Attorney General Adam P. Laxalt as counsel for respondents and directing
a notice of electronic filing of this order to his office. No response is required from
respondents other than to respond to any orders of a reviewing court.
IT FURTHER IS ORDERED that this matter is referred to the Warden of the Northeast
Ohio Correctional Center for consideration of possible institutional disciplinary sanctions
and/or loss of sentencing credits under Ohio law based upon the filing of a frivolous judicial
proceeding. The Clerk accordingly shall SEND a copy of this order to:
Mr. Christopher La Rose, Warden
Northeast Ohio Correctional Center
2240 Hubbard Road
Youngstown, Ohio 44505
IT FURTHER IS ORDERED that the Clerk shall designate petitioner as a restricted filer
on the docket sheet and shall accept no further filings from petitioner in this matter other than
a notice of appeal from this order and/or the order and judgment of dismissal.
DATED: November 16, 2017.
HOWARD D. MCKIBBEN
United States District Judge
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