Dempsey v. State of Nevada

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 HENRY WILLIAM DEMPSEY, JR., Case No. 3:21-cv-00302-RCJ-CSD

4 Petitioner, ORDER v. 5 WARDEN GARRETT, et al., 6 Respondents. 7 8 This is a habeas corpus action under 28 U.S.C. § 2254. Currently before the court are (1) 9 the respondents’ motion (ECF No. 23) to strike the pro se amended petition (ECF No. 22) as 10 improperly filed by the petitioner rather than his appointed counsel; (2) the petitioner’s second 11 unopposed motion (ECF No. 24) to extend the deadline to file a second amended petition to July 12 22, 2022; and (3) the respondents’ first unopposed motion (ECF No. 27) to extend time to file a 13 response to the second amended petition to November 21, 2022. 14 The respondents’ motion (ECF No. 23) to strike petitioner’s pro se amended petition 15 (ECF No. 22) will be granted and the amended petition (ECF No. 22) will be stricken as it is 16 filed in violation of LR IA 11-6. 17 “It is well established that district courts have inherent power to control their docket,” 18 including the power to strike improperly filed items from the docket. Ready Transp., Inc. v. AAR 19 Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). The Local Rules of Practice state, in relevant part: 20 A party who has appeared by attorney cannot while so represented appear or act in the case. This means that once an attorney makes an appearance on behalf of a 21 party, that party may not personally file a document with the court; all filings must thereafter be made by the attorney . . . . 22 23 LR IA 11-6(a). This rule further states that an “attorney who has appeared for a party must be 24 recognized by the court and all the parties as having control of the client’s case.” Id. 25 Because counsel is appointed to represent the petitioner, the petitioner may not personally 26 file motions or documents with the court and the court will order the pro se amended petition 27 (ECF No. 22) stricken from the court’s docket. 28 Good causing appearing, the petitioner’s second unopposed motion (ECF No. 24) for 1 extension of time to file the second amended petition will be granted nunc pro tunc and the 2 second amended petition, filed on July 22, 2022 (ECF No. 25) will be considered timely filed. 3 Good cause appearing, the respondents’ first unopposed motion (ECF No. 27) to extend time to 4 file a response to the second amended petition will also be granted giving the respondents until 5 November 21, 2022, to file a response to the second amended petition. 6 IT IS THEREFORE ORDERED that the respondents’ motion to strike petitioner’s pro se 7 amended petition (ECF No. 23) is GRANTED and the Clerk of the Court is ordered to strike the 8 petitioner’s pro se amended petition (ECF No. 22) from the Court’s docket. 9 IT IS FURTHER ORDERED that the petitioner’s unopposed second motion for 10 extension of time to file the second amended petition (ECF No. 24) is GRANTED NUNC PRO 11 TUNC and the second amended petition (ECF No. 25) is deemed timely filed. 12 IT IS FURTHER ORDERED that the respondents’ unopposed first motion to extend time 13 to file a response to the second amended petition (ECF No. 27) is GRANTED. The respondents 14 have until November 21, 2022, to file a response to the second amended petition. 15 Dated: September 22, 2022.

16 ROBERT C. JONES UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28