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Schenker v. Baker

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
Dec 28, 2012
Case No. 3:12-CV-00679-HDM-VPC (D. Nev. Dec. 28, 2012)

Opinion

Case No. 3:12-CV-00679-HDM-VPC

12-28-2012

KARL W. SCHENKER, Plaintiff, v. RENE BAKER, et al., Defendants.


ORDER

Plaintiff has submitted an application to proceed in forma pauperis (#1) and a petition for a writ of mandamus. The court dismisses this action for two reasons.

First, plaintiff has completed the application (#1) incorrectly. On the financial certificate, plaintiff marked that he is pursuing a petition for a writ of habeas corpus, for which the filing fee is $5.00. However, for all civil actions other than habeas corpus petitions, the filing fee is $350.00. Petitioner will need to commence a new action in which he completes the application to proceed in forma pauperis correctly.

Second, mandamus is not suitable for the nature of this action. Plaintiff alleges that he is indigent and that prison officials are not providing him with pen, paper, and postage to draft legal documents and mail them to the court. Plaintiff does have a right of access to the courts, which is violated if he can demonstrate an actual injury such as an inability to file a non-frivolous claim. Lewis v. Casey, 518 U.S. 343, 348-53 (1996). The court does have the authority to issue a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651, in extraordinary circumstances.

The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. Although that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.
Pennsylvania Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 42-43 (1985). This court has the authority to fashion a remedy to any violations of plaintiff right of access to the courts through a civil rights action pursuant to 42 U.S.C. § 1983. If plaintiff wishes to pursue his claims, then he should commence a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff also needs to use the court's complaint form, as required by Local Rule LSR 2-1.

IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (#1) is DENIED without prejudice.

IT IS FURTHER ORDERED that the clerk of the court shall send plaintiff a blank form for an application to proceed in forma pauperis for incarcerated litigants and a blank civil rights complaint form with instructions.

IT IS FURTHER ORDERED that this action is DISMISSED without prejudice to plaintiff's commencement of a new action in which he uses the court's complaint form and either pays the filing fee in full or submits a complete application to proceed in forma pauperis, accompanied by a signed financial certificate and a statement of his inmate account. The clerk of the court shall enter judgment accordingly.

______________________

HOWARD D. MCKIBBEN

United States District Judge


Summaries of

Schenker v. Baker

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
Dec 28, 2012
Case No. 3:12-CV-00679-HDM-VPC (D. Nev. Dec. 28, 2012)
Case details for

Schenker v. Baker

Case Details

Full title:KARL W. SCHENKER, Plaintiff, v. RENE BAKER, et al., Defendants.

Court:UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Date published: Dec 28, 2012

Citations

Case No. 3:12-CV-00679-HDM-VPC (D. Nev. Dec. 28, 2012)