Opinion
CV-24-02330-PHX-JAT (ESW)
10-31-2024
Michael Justin Winders, Petitioner, v. Jason Gunther, Respondent.
ORDER
James A. Teilborg, Senior United States District Judge
Petitioner Michael Justin Winders, who is confined in the Federal Correctional Institution-Phoenix, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). Petitioner has not paid the $5.00 filing fee or filed an Application to Proceed In Forma Pauperis.
I. Failure to Comply with Local Rule 3.5(c)
Rule 3.5(c) of the Local Rules of Civil Procedure requires that “[i]f a habeas corpus petitioner desires to prosecute the petition in forma pauperis, the petitioner shall file an application to proceed in forma pauperis on a form approved by the Court, accompanied by a certification of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit.” Rule 3.5(c) also requires payment of the $5.00 filing fee if a petitioner has in excess of $25.00 in his inmate account.
Because Petitioner has not paid the $5.00 filing fee or filed an Application to Proceed In Forma Pauperis, the Court will give Petitioner 30 days from the date this Order is filed to either pay the $5.00 filing fee or file a complete Application to Proceed In Forma Pauperis using the form included with this Order.
II. Petition not on Court-Approved Form
Pursuant to Rule 3.5(a) of the Local Rules of Civil Procedure, Petitioner is required to use a court-approved form when he files a pro se petition pursuant to 28 U.S.C. § 2241. The Court may, in its discretion, forgo the requirement that a petitioner use a court-approved form. See LRCiv 3.5(a). The Court will require use of the court-approved form because Petitioner's Petition does not substantially comply with the court-approved form. The Court will dismiss the Petition without prejudice and with leave to file an amended petition within 30 days.
III. Leave to Amend
Within 30 days, Petitioner may submit an amended petition on the court-approved form. The Clerk of Court will mail Petitioner a court-approved form to use for filing a § 2241 Petition. If Petitioner fails to use the court-approved form, the Court may strike the amended petition and dismiss this action without further notice to Petitioner.
Petitioner's amended petition should clearly set out each claim Petitioner is making. If Petitioner cannot fit all of his supporting facts or arguments in favor of a particular ground on the court-approved form, then he may continue on an attachment, but each matter on any attachment must be clearly referenced to a particular ground on the court-approved form.
The amended petition must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Petition by reference. Any amended petition submitted by Petitioner should be clearly designated as such on the face of the document.
An amended petition supersedes the original Petition. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as nonexistent. Ferdik, 963 F.2d at 1262. Any ground for relief that was raised in the original Petition and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in an amended petition. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
IV. Warnings
A. Address Changes
Petitioner must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
B. Possible Dismissal
If Petitioner fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Within 30 days of the date this Order is filed, Petitioner must either pay the $5.00 filing fee or file a complete Application to Proceed In Forma Pauperis.
(2) If Petitioner fails to either pay the $5.00 filing fee or file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Petitioner.
(3) Petitioner's § 2241 Petition (Doc. 1) is dismissed with leave to amend. Petitioner has 30 days from the date of filing of this Order to file an amended § 2241 petition in compliance with this Order.
(4) If Petitioner fails to file an amended petition within 30 days, the Clerk of Court must enter a judgment of dismissal of this action, without prejudice and without further notice to Petitioner and deny any pending unrelated motions as moot.
(5) The Clerk of Court must mail Petitioner the current court-approved form for filing a “Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody” and the current court-approved form for filing an Application to Proceed In Forma Pauperis (Habeas).