Opinion
Civil Action No. 08-cv-00961-BNB.
June 23, 2008
ORDER
Applicant, John J. McCarthy, has filed pro se on June 17, 2008, a "Motion for Clarification." Mr. McCarthy asks the court to clarify the claims being raised in this action because he alleges that he has submitted two pleadings to the court raising separate claims and he has been advised that the court has received only one of those pleadings. The "Motion for Clarification" will be granted.
Mr. McCarthy initiated this action by submitting to the court a "Petition for a Writ of Habeas Corpus by a Prisoner in Federal Custody." That petition is document number 2 on the court's docket sheet. On May 8, 2008, the court entered an order directing the clerk of the court to commence a civil action and directing Mr. McCarthy to cure certain deficiencies if he wished to pursue his claims. More specifically, Mr. McCarthy was ordered to file the pleading on the proper form and either to pay the filing fee or to file a motion seeking leave to proceed in forma pauperis. Also on May 8, 2008, Mr. McCarthy submitted to the court a "Petition for a Writ of Habeas Corpus by a Prisoner Held in Federal Custody" that was filed in this action and appears as document number 3 on the court's docket sheet. The two habeas corpus petitions filed on May 8 raise different claims. In the pleading docketed as document number 2, Mr. McCarthy challenges the conditions of his confinement. In the pleading docketed as document number 3, Mr. McCarthy challenges the calculation of his federal sentence.
On May 27, 2008, Mr. McCarthy filed on the proper forms a motion seeking leave to proceed in forma pauperis and an "Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241." In the amended application filed on May 27, 2008, Mr. McCarthy states that he is challenging the calculation of his federal sentence. On June 17, 2008, Mr. McCarthy filed his "Motion for Clarification"
Because Mr. McCarthy challenges the calculation of his federal sentence in the amended application filed on May 27, the court finds that those are the claims being pursued in this action. The court will order the clerk of the court to remove from this action the pleading filed as document number 2, in which Mr. McCarthy challenges the conditions of his confinement, and file that pleading in a new civil action that will have a different civil action number. Accordingly, it is
ORDERED that the "Motion for Clarification" filed June 17, 2008, is granted. It is
FURTHER ORDERED that the clerk of the court remove from this action the pleading filed as document number 2 and file that pleading in a new civil action together with a copy of this order.