United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, District Judge.
This matter is before the court on Petitioner Rocky Huryta's ("Petitioner") Motion (Filing No. 10) seeking reconsideration of the court's order dismissing this matter without prejudice. For the reasons discussed below, the court will grant Petitioner's Motion and direct the clerk's office to reopen this matter and serve the habeas corpus petitions on Respondent.
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 22, 2014. (Filing No. 1.) On June 19, 2014, the court determined it could not effectively conduct its preliminary review of the petition because the petition was nonsensical and did not state any discernible grounds for relief. (Filing No. 6 at CM/ECF p. 1.) See Rule 4 of the Rules Governing Section 2254 Cases. The court ordered Petitioner to file an amended petition for writ of habeas corpus that clearly set forth his claims for relief. ( Id. )
Petitioner filed an amended petition for writ of habeas corpus on July 10, 2014. (Filing No. 7.) Upon review of the amended petition, the court determined that it was also nonsensical, did not state any discernible grounds for relief, and did not set forth whether Petitioner is "in custody." See Maleng v. Cook, 490 U.S. 488, 490-91 (U.S. 1989 (stating federal law requires that a "habeas petitioner be in custody' under the conviction or sentence under attack at the time the petition is filed") (citing 28 U.S.C. § 2254(a)). Accordingly, the court dismissed this action without prejudice. (Filing No. 8.)
Petitioner filed the Motion at issue here on August 12, 2014. (Filing No. 10.) Liberally construed, Petitioner asserts in his Motion that he is in custody pursuant to a civil commitment order issued by the Ninth Judicial District Mental Health Board, and the civil commitment is unconstitutional.
In light of this filing, and out of an abundance of caution, the court will grant Petitioner's Motion (Filing No. 10), and direct the clerk's office to reopen this matter and serve the habeas corpus petitions on Respondent.
IT IS THEREFORE ORDERED that:
1. Petitioner's Motion for Reconsideration (Filing No. 10) is granted.
2. The clerk's office is directed to reopen this matter.
3. The clerk's office is directed to mail copies of this Memorandum and Order, the habeas corpus petition (Filing No. 1) and the amended habeas corpus petition (Filing No. 7) to Respondent and the Nebraska Attorney General by regular first-class mail.
4. By October 9, 2014, Respondent shall file a motion for summary judgment or state court records in support of an answer. The Clerk of the Court is directed to set a pro se case management deadline in this case using the following text: October 9, 2014: deadline for Respondent to file state court records in support of answer or motion for summary judgment.
5. If Respondent elects to file a motion for summary judgment, the following procedures shall be followed by Respondent and Petitioner:
A. The motion for summary judgment shall be accompanied by a separate brief, submitted at the time of the filing of the motion.
B. The motion for summary judgment shall be supported by such state court records as are necessary to support the motion. Those records shall be contained in a separate filing entitled: "Designation of State ...