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Richards v. Wade

United States District Court, E.D. Oklahoma

July 16, 2018

JOE K. RICHARDS, Petitioner,
v.
MICHAEL WADE, Warden, Respondent.

          OPINION AND ORDER

          Ronald A. While United States District Judge

         On June 19, 2017, Petitioner, a pro se state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Northern District of Oklahoma (Dkt. 1). While the petition was unclear, the Northern District Court found he apparently was challenging the revocation of his parole and the execution of his sentence(s) (Dkt. 2). Because Petitioner was incarcerated within the territorial jurisdiction of the Eastern District of Oklahoma when the petition was filed, the action was transferred to this Court on August 7, 2017, pursuant to Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (holding that a § 2241 petition “attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined”). Id.

         In response to this Court's Order, Petitioner filed a motion for leave to proceed in forma pauperis on August 21, 2017 (Dkt. 7). The motion was denied, and Petitioner was directed to pay the $5.00 filing fee by September 10, 2017, or show cause by that date why he did not have sufficient assets to pay the fee (Dkt. 9). Petitioner failed to pay the filing fee as directed, and this action was dismissed without prejudice on October 2, 2017 (Dkt. 10).

         On October 23, 2017, Petitioner filed a motion to reconsider the dismissal of his case, because the filing fee was unpaid “through no fault of his own” (Dkt. 12). Petitioner alleged he submitted a disbursement to the staff at his facility, and he believed the fee had been sent to the Court. Id. He learned that the fee was not paid when he received notice of the dismissal. Id. On January 19, 2018, the Court granted the motion to reconsider, reopened the case, and ordered Petitioner to pay the filing fee by February 8, 2018 (Dkt. 13). The fee, however, was not paid, and this action again was dismissed without prejudice on April 27, 2018 (Dkt. 14).

         On June 28, 2018, Petitioner filed a “motion to allow petitioner to submit his $5.00 filing fee, ” again alleging the filing fee was not paid “through no fault of his own” (Dkt. 16). The Court construes this motion as motion for relief from a judgment or order, pursuant to Fed. R. Civ. P 60(b). Petitioner again claims he followed the Department of Corrections procedures at his facility and believed a check would be issued to the Court Clerk, until he received the second notice of dismissal.

         Petitioner asserts that upon learning of the second dismissal of his case, he submitted two Requests to Staff to the law library on June 5, 2018, requesting a copy of the disbursement and the date the fee was sent to this Court (Dkt. 16 at 5-6). The June 6, 2018, responses to the Requests stated that the disbursement request was “scanned to trust fund” on February 9, 2018, and Petitioner had the disbursement. Id. Petitioner next filed a grievance concerning this issue on June 15, 2018. Id. at 7. He claims the grievance was not answered, and he was advised that his facility does not have access to the prisoners' trust funds. Id. at 2-3.[1]

         The pertinent portions of Rule 60(b) allow relief from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; . . .
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; . .
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). “Rule 60(b) relief ‘is extraordinary and may only be granted in exceptional circumstances.'” Zurich North America v. Matrix Service, Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (quoting Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000)). Furthermore, “[i]n a Rule 60(b) proceeding the motion is addressed to the sound discretion of the [district] court.” Caribou Four Corners v. Truck Ins. Exchange, 443 F.2d 796, 799 (10th Cir. 1971) (citations omitted).

         The Court has carefully reviewed the record and construes Petitioner's pleadings liberally. Haines v. Kerner, 404 U.S. 519 (1972). Petitioner's documentation indicates the filing fee was disbursed, but was not forwarded to this Court. Therefore, his motion for relief is GRANTED, and the Court Clerk is directed to REOPEN this case. Petitioner, however, must pay the $5.00 filing fee within thirty (30) days, and he must complete and submit within thirty (30) days an amended petition for a writ of habeas corpus on the Court's form. The officials at Petitioner's facility are directed to collect and forward the filing fee in accordance with this Order.

         ACCORDINGLY, IT IS HEREBY ORDERED that:

         1. Petitioner's motion to allow him to submit the filing fee (Dkt. 16), which is construed as a motion for relief ...


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