Opinion
21-cv-0429 (WMW/DTS)
10-29-2021
Stephen Collins, Petitioner, v. U.S.A., Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
Wilhelmina M. Wright, United States District Judge.
Before the Court is the July 30, 2021 Amended Report and Recommendation (R&R) of United States Magistrate Judge David T. Schultz. (Dkt. 43.) No. objections to the R&R have been filed. In the absence of timely objections, this Court reviews an R&R for clear error. See Fed. R. Civ. P. 72(b); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam). Having reviewed the R&R, the Court finds no clear error.
Based on the R&R, the foregoing analysis and all the files, records and proceedings herein, IT IS HEREBY ORDERED:
1. The July 30, 2021 R&R, (Dkt. 43), is ADOPTED.
2. Petitioner Stephen Collins's petition for a writ of habeas corpus, (Dkt. 1), is DISMISSED WITHOUT PREJUDICE.
Habeas cases are not “civil actions” within the meaning of 28 U.S.C. § 1915. See, e.g., Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005) (stating that “the language of § 1915(g) does not encompass habeas petitions and . . . Congress intended § 1915(g) to address civil rights and prison condition cases, not habeas petitions”). Because the Court is not dismissing Collins's habeas petition for a reason enumerated in Section 1915(g), the dismissal is not a “strike” even if construed as a “civil action.” See 28 U.S.C. § 1915(g).
3. Petitioner Stephen Collins's motions for summary judgement, (Dkts. 21, 40), are DENIED AS MOOT.
LET JUDGMENT BE ENTERED ACCORDINGLY.