Roache v. Sullivan et al

Filing 2

ORDER Directing Administrative Closure With Opportunity to Comply With Filing Fee Requirements: ORDERED that because this action was not properly commenced, the Clerk is directed to administratively close this action. ORDERED that if petitioner wan ts to pursue this action, he must so notify the Court WITHIN THIRTY (30) DAYS of the filing date of this Order and either: (1) pay the court's filing fee of five dollars ($5.00); or (2) submit a completed and signed IFP Application. Signed by Senior Judge Thomas J. McAvoy on 9/6/16. (served on petitioner with form by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

WALTER J. ROACHE,
Petitioner
v.

CASE NUMBER: 9:16-cv-1069(TJM/TWD)

ANN MARIE SULLIVAN, et al.,
Respondents.

Order Directing Administrative Closure
With Opportunity to Comply With Filing Fee Requirements
Petitioner's petition for a writ of habeas corpus was received for filing in the Northern
District of New York on September 1, 2016. A habeas corpus action is commenced in
federal district court by filing a petition. The statutory filing fee ($5.00) must also be paid at
the time the petition is filed, unless the petitioner seeks in forma pauperis status. 28 U.S.C.
§ 1915; N.D.N.Y. Local Rule 5.4(a); Rule 3, Rules Governing Section 2254 Cases in the
United States District Courts. 1 The Local Rules of Practice for the Northern District of New
York require all persons seeking in forma pauperis status to submit a completed and signed
In Forma Pauperis Application ("IFP Application"). See 28 U.S.C. § 1915(a)(1); N.D.N.Y.
Local Rule 5.4(a).
Petitioner has not submitted an IFP Application and has not paid the f iling fee. The
court therefore finds that this action has not been properly commenced.

1

The habeas rules also govern petitions filed pursuant to 28 U.S.C. § 2241. Rule 1(b), Rules
Governing Section 2254 Cases in the United States District Courts.

WHEREFORE, it is hereby
ORDERED that because this action was not properly commenced, the Clerk is directed
to administratively close this action;2 and it is further
ORDERED that if petitioner wants to pursue this action, he must so notify the Court
WITHIN THIRTY (30) DAYS of the filing date of this Order and either: (1) pay the court's filing
fee of five dollars ($5.00); or (2) submit a completed and signed IFP Application; and it is
further
ORDERED that upon petitioner's compliance with this order, the Clerk shall reopen this
action and forward it to the Court for review; and it is further
ORDERED that the Clerk serve a copy of this Order on petitioner along with a blank IFP
Application.
IT IS SO ORDERED.
Dated: September 6, 2016

2

Petitioner is advised that administrative closure is not a dismissal for purposes of the statute of
limitations, and that if this case is reopened as set forth in this order, the timeliness of his petition will be
determined with reference to the original filing date. See Houston v. Lack, 487 U.S. 266, 276 (1988) (notice of
appeal was deemed filed at the time petitioner delivered it to the prison authorities for forwarding to the court
clerk); McDowell v. Delaware State Police, 88 F.3d 188, 191 (3d Cir. 1996) (deeming complaint to have been
constructively filed upon receipt even though the filing fee requirements had not yet been complied with); c.f.
Jordan v. United States, 694 F.2d 833, 837 (D.C. Cir. 1982) (noting that when a Rule 60(b) motion is granted,
"the complaint should be reinstated as of the date it was originally filed."); Akobardiya v. Princess Cruise Lines,
Ltd., No. 11-CV-2921, 2012 WL 3746218, at *2 (E.D.N.Y. Aug. 27, 2012) (Rule 60(b) motion granted and case
reopened where statute of limitations had since expired and claims would be untimely if action was refiled); see
also Dory v. Ryan, 999 F.2d 679, 682 (2d Cir.1993) (under the prison-mailbox rule, the court deems a pro se
prisoner's complaint filed on the date that the prisoner delivered the complaint to prison officials for transmittal
to the court).

2