Page v. King

Filing 79

ORDER GRANTING 68 Motion to Amend ; ORDER CONSTRUING 68 Motion to Amend as First Amended Petition; ORDER DISMISSING 77 Motion to Compel ; ORDER GRANTING Respondent Leave to Supplement Motion to Dismiss, signed by Magistrate Judge Jennifer L. Thurston on 9/15/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAMMY L. PAGE,

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Petitioner,

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v.

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AUDREY KING,
Respondent.

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Case No.: 1:16-cv-00522-AWI-JLT (HC)
ORDER GRANTING MOTION TO AMEND
[Doc. No. 68]
ORDER CONSTRUING MOTION TO AMEND AS
FIRST AMENDED PETITION
ORDER DISMISSING MOTION TO COMPEL
[Doc. No. 77]
ORDER GRANTING RESPONDENT LEAVE TO
SUPPLEMENT MOTION TO DISMISS

Petitioner challenges his on-going pre-trial detention awaiting trial as a Sexually Violent

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Predator (“SVP”). Petitioner was originally committed as an SVP in 2004 for a two-year

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commitment. The State of California filed a petition to re-commit Petitioner for a second two-year

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period in 2006. However, after a change in California law, the prosecutor amended the petition to

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provide for an indefinite commitment. Over the subsequent ten years, the matter has been continued

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no less than twenty-eight times.

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Following remand from an appeal to the Ninth Circuit, this case was transferred to this Court

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by the Northern District after that court determined that it was not the custodial court. On April 21,

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2016, the Court ordered Respondent to file a response to the original petition. Petitioner filed a

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motion to appoint counsel on April 25, 2016, which the Court denied on April 27, 2016. Petitioner
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filed a motion for reconsideration and the Court denied the motion. Subsequently, Petitioner

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attempted to appeal this non-appealable order to the Ninth Circuit, which dismissed the appeal on July

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21, 2016.

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On July 22, 2016, Petitioner filed a document which purported to be a petition pursuant to 28

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U.S.C. 2241. The Clerk of the Court filed the document as a motion to amend the original petition.

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(Doc. 68). On August 26, 2016, the Court issued an order regarding Petitioner’s motion to amend.

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The Court noted that the case was proceeding on the original petition insofar as it had not been

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dismissed. The Court stated that it appeared that Petitioner may have believed he needed to file a new

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petition, which was not the case. Therefore, the Court directed Petitioner to advise the Court whether

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he desired to proceed with the original petition or if he did, in fact, desire to file an amended petition.

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On August 26, 2016, Petitioner filed a notice of options pursuant to the Court’s order. (Doc.

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No. 76.) Petitioner states he did intend to file an amended petition, because it was what he believed he

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was required to do according to the Ninth Circuit’s order in Appeal No. 15-17278. (Doc. No. 76, Ex.

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U.) However, that order concerned other cases Petitioner had pending in the Northern District,

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specifically, Case Nos. 3:13-cv-05352-WHA and 3:14-cv-02052-WHA. The order was not issued in

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any appeals concerning the instant case and therefore has no application here.

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Nevertheless, Petitioner seeks to proceed with the amended petition, which is his right under

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Fed. R. Civ. P. 15(a). Petitioner complains that the Court stated the amended petition would be

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dismissed because the amended petition did not contain any claims, but he claims the amended

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petition did in fact contain two claims. Petitioner reiterated these arguments in a motion to compel

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filed on September 12, 2016. Petitioner is correct that the amended petition does in fact present two

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claims. While not set forth in the form petition, Petitioner referred to attached pages where he sets

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forth two claims with supporting factual arguments. (Doc. No. 68, pp. 15, 17.) Therefore,

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Petitioner’s motion to amend will be granted. The Court notes that Respondent filed a motion to

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dismiss on August 17, 2016. Respondent will be granted leave to file a supplemental brief to her

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motion to dismiss, however, such brief is optional since Respondent addressed the amended petition as

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well as the initial petition in her motion. Petitioner will then be granted leave to file an opposition.

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Should Petitioner file an opposition, Respondent will then be permitted to file a reply.
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ORDER

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Accordingly, the Court ORDERS:

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1) Petitioner’s motion to amend (Doc. No. 68) is GRANTED;

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2) The motion to amend is construed as a first amended petition (Doc. No. 68);

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3) Petitioner’s motion to compel (Doc. No. 77) is DISMISSED as moot;

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4) Respondent is GRANTED thirty days to file an optional supplemental brief to her motion
to dismiss or a statement she does not intend to file a supplemental brief;

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5) Within 21 days after the date Respondent files her supplemental brief or statement she will

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not file a supplemental brief, Petitioner SHALL file an opposition or statement of nonopposition to the motion.

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6) Respondent may file a reply to the opposition, if any, within seven days after the
opposition is served.

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IT IS SO ORDERED.
Dated:

September 15, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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