Brown v. Mims

Filing 19

ORDER DENYING Without Prejudice 17 Petitioner's Motion to Clarify and Make Modification signed by Magistrate Judge Michael J. Seng on 12/13/2011. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH A. BROWN,

1:11-cv-01601 MJS HC

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Petitioner,

ORDER DENYING WITHOUT PREJUDICE
MOTION TO CLARIFY AND MAKE
MODIFICATION

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v.
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[Doc. 17]
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MARGRET MIMS,
Respondent.
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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.

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Petitioner filed the instant petition for writ of habeas corpus on September 21, 2011.

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(Pet., ECF No. 1.) On December 7, 2011, Petitioner filed a motion to clarify and make

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modification. (Mot., ECF No. 17.) Petitioner requests that the Court allow him to make

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corrections to the documents filed in the present case.

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Rule 15(a) of the Federal Rules of Civil Procedure provides, in relevant part:
(1) Amending as a Matter of Course. A party may amend its
pleading once as a matter of course: (A) 21 days after serving
it, or (B) if the pleading is one to which a responsive pleading
is required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.

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Petitioner may amend as a matter of course up to 21 days after a responsive
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pleading or motion is filed. Respondent has yet to file a response. While Petitioner may
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amend or correct his petition, he has not provided an amended petition or described the

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corrections he desires to make. Accordingly his motion is denied without prejudice to his

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filing a motion to amend containing all the information he desires to present and complying

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with the following rules.

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Rule 2 of the "Rules Governing Section 2254 Cases" provides that the petition “...

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must specify all the grounds for relief available to the petitioner; state the facts supporting

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each ground; state the relief requested...” Rule 2 of the Rules Governing 2254 Cases.

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Rule 2 further provides that the petition “must substantially follow either the form appended

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to these rules or a form prescribed by a local district-court rule. The clerk must make forms

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available to petitioners without charge.” Id. at 2(c).

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In addition, Rule 4 of the Rules Governing § 2254 Cases requires the Court to make

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a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a

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petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief."

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Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490

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(9th Cir. 1990).

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Petitioner is advised that an amended petition supercedes the original petition,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d

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565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or

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superceded pleading." Local Rule 220. Accordingly, Petitioner's last filed amended petition

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must contain all the claims Petitioner wishes to present before the Court. Plaintiff is warned

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that "[a]ll causes of action alleged in an original complaint which are not alleged in an

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amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers &

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Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)).

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Accordingly, it is HEREBY ORDERED that:
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Petitioner’s Motion to Clarify and Make Modification is DENIED without

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prejudice.

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IT IS SO ORDERED.

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Dated:
ci4d6

December 13, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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