Opinion
No. MC08-5045.
February 6, 2009
ORDER
This matter comes before the Court sua sponte. On March 24, 2008, the Honorable Franklin D. Burgess, United States District Court Judge, entered an order barring plaintiff from litigating in this district unless he provides a "signed affidavit, along with the proposed complaint, verifying under penalty of perjury that none of the issues raised in the proposed complaint have been litigated in the past by the [p]laintiff." Plaintiff was also barred from proceeding in forma pauperis with a civil rights, Bivens, or Federal Tort Claim Act action unless he shows that he is in imminent danger of serious bodily injury or death. On January 12, 2009, the Clerk of Court received a petition for writ of habeas corpus and an application to proceed in forma pauperis from Mr. Marks. Dkt. # 23. No filing fee or affidavit was included in the submission. The proposed petition is now before the undersigned for review pursuant to the terms of the bar order.
Plaintiff's January 12, 2009, submission does not satisfy the March 24, 2008, bar order. Plaintiff has not verified, under penalty of perjury, that the claims asserted have not already been litigated. Such a verification appears to be within his power despite the fact that he has already litigated a claim of indefinite detention in Marks v. Clark, C07-1897MJP. The passage of time is often a critical factor in indefinite detention cases, and plaintiff asserts that he remains in immigration custody four months after Judge Pechman entered judgment against him and without any hope of removal.
Because Mr. Marks has submitted a habeas petition, he need not show that he is in imminent danger of serious bodily injury or death in order to proceed in forma pauperis.
The new action submitted on January 12, 2009, shall not be permitted to proceed. The Clerk of Court shall docket this order in MC08-5045. Neither the Clerk of Court nor defendants need take any further action with regards to this matter.