Opinion
2:12-cv-01029-JCM-CWH
11-27-2012
TERRANCE L. OLIVER, Plaintiff, v. JAMES G. COX, et al. Defendants.
ORDER
Plaintiff, a Nevada state inmate, has filed an application (#1) to proceed in forma pauperis seeking to initiate a civil rights action along with a motion (#2) for appointment of counsel.
Plaintiff has not submitted a proper application to proceed in forma pauperis. Under 28 U.S.C. § 1915(a)(2) and LSR 1-1 and LSR 1-2 of the local rules, a plaintiff must submit an application on the court's required form. The plaintiff must use the current version of the form, which was revised effective July 21, 2008. In the present case, plaintiff used pages from either a superceded version of the form and/or a "homemade" version of the required form. The financial certificate in particular clearly is from a superceded version of the form.
It does not appear from review of the allegations presented that a dismissal without prejudice would materially impact the analysis of the timeliness issue or other issues as to a promptly-filed new action.
From the allegations presented, it appears subject to substantial question whether the action is cognizable in a federal civil rights action as opposed to a federal habeas action following exhaustion of state judicial remedies. Petitioner is seeking to challenge administrative action that he alleges deprived him of 540 days of sentencing credit. As plaintiff's claims appear to necessarily challenge the length and duration of his confinement, it would appear that he may not proceed via a federal civil rights action at this juncture. In the final analysis, it is plaintiff's responsibility to timely seek relief in an appropriate procedural vehicle in a proper court. The court leaves a definitive resolution of any such issues to a properly-commenced federal action. The court notes these issues only in determining that a dismissal without prejudice of the present improperly-commenced action will not materially impact the consideration of such issues in a promptly-filed new action.
IT THEREFORE IS ORDERED that the application (#1) to proceed in forma pauperis is DENIED without prejudice.
IT FURTHER IS ORDERED that the motion (#2) for appointment of counsel is DENIED without prejudice.
IT FURTHER IS ORDERED that this action is DISMISSED without prejudice to the filing of a new complaint in a new action together with either the required $350.00 filing fee or a properly completed application to proceed in forma pauperis on the proper form and with all required, and new, financial attachments.
IT FURTHER IS ORDERED that the clerk shall SEND plaintiff two copies each of an in forma pauperis application form for a prisoner and a § 1983 complaint form, one copy of the instructions for each form, and one copy of the papers that plaintiff submitted in this action.
The clerk shall enter final judgment accordingly, dismissing this action without prejudice.
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JAMES C. MAHAN
United States District Judge