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Gibson v. Warden Rikers Island

United States District Court, Eastern District of New York

December 9, 2014

BENNIE GIBSON, Petitioner,
v.
WARDEN RIKERS ISLAND, Respondent.

ORDER

KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:

On July 7, 2014, petitioner Bennie Gibson, presently incarcerated at Rikers Island Correctional Facility, commenced this pro se action, which the court construed as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 at the time of filing. Petitioner’s submission did not include the requisite filing fee required to commence the action. By letter from the Clerk of Court dated July 10, 2014, and entered July 11, 2014, petitioner was provided with an in forma pauperis (“IFP”) application form and was instructed that in order to proceed, petitioner must return the completed IFP application or pay the five dollar fee within 14 days from receipt of the clerk’s letter. (ECF No. 2.)

By letter dated July 15, 2014, and entered July 24, 2014, petitioner stated that he did not file a § 2254 petition with the Court, and requested a copy of the petition. (ECF No. 3). On July 28, 2014, the Clerk of Court received a letter from petitioner dated May 31, 2014, requesting permission to “file a fed writ.” (ECF No. 4.) Accordingly, by order dated September 24, 2014, petitioner was informed that he must pay the five dollar filing fee or file an IFP application if he wished to pursue this action. (ECF No. 5.) Alternatively, petitioner was informed that if he wishes to withdraw his petition he should make his request in writing. Id.

On October 6, 2014, the Court received a letter from petitioner stating that “[i]t would be futile to file a 28 USCA 2254 Writ without allowing state a chance to remedy.” (See ECF No. 6, Letter from Petitioner dated October 1, 2014.) Petitioner further states that the court “[s]omehow . . . considered a letter a Writ.” (Id.)

Given petitioner’s conflicting statements whether he wishes to file and pursue a writ of habeas corpus, the Court, by order dated October 29, 2014, directed petitioner to notify the Court in writing within 30 days if he would like to withdraw his July 7, 2014 submission. (ECF No. 7.) Petitioner was further informed that if did not wish to withdraw the action, he must pay the five dollar filing fee or file an IFP application. Finally, petitioner was informed that failure to comply with the Court’s order would result in dismissal of the action without prejudice.

On November 3, 2014, the Court received a letter from petitioner which was not responsive to the Court’s prior order, attaching a copy of petitioner’s notice of appeal pursuant to C.P.L. § 460.15 to the Appellate Division of the Supreme Court of New York. (ECF No. 8.)

It is still unclear to the Court if petitioner wishes to file and pursue a petition for a writ of habeas corpus, or if he wishes to withdraw the action. To the extent that plaintiff seeks to file a writ of habeas corpus, he still failed to pay the five-dollar filing fee or file an IFP application as previously directed. Despite being given several opportunities to inform the Court as to how he wishes to proceed with this action, petitioner has failed to do so. Accordingly, petitioner’s action is dismissed without prejudice.[1] The Clerk of Court is respectfully directed to close this action and mail a copy of this order to petitioner at his last known address.

SO ORDERED.


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