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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAMMY L. PAGE, 12 Petitioner, 13 14 v. 15 16 17 AUDREY KING, Respondent. 18 19 ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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 20 Predator (“SVP”). Petitioner was originally committed as an SVP in 2004 for a two-year 21 commitment. The State of California filed a petition to re-commit Petitioner for a second two-year 22 period in 2006. However, after a change in California law, the prosecutor amended the petition to 23 provide for an indefinite commitment. Over the subsequent ten years, the matter has been continued 24 no less than twenty-eight times. 25 Following remand from an appeal to the Ninth Circuit, this case was transferred to this Court 26 by the Northern District after that court determined that it was not the custodial court. On April 21, 27 2016, the Court ordered Respondent to file a response to the original petition. Petitioner filed a 28 motion to appoint counsel on April 25, 2016, which the Court denied on April 27, 2016. Petitioner 1 1 filed a motion for reconsideration and the Court denied the motion. Subsequently, Petitioner 2 attempted to appeal this non-appealable order to the Ninth Circuit, which dismissed the appeal on July 3 21, 2016. 4 On July 22, 2016, Petitioner filed a document which purported to be a petition pursuant to 28 5 U.S.C. 2241. The Clerk of the Court filed the document as a motion to amend the original petition. 6 (Doc. 68). On August 26, 2016, the Court issued an order regarding Petitioner’s motion to amend. 7 The Court noted that the case was proceeding on the original petition insofar as it had not been 8 dismissed. The Court stated that it appeared that Petitioner may have believed he needed to file a new 9 petition, which was not the case. Therefore, the Court directed Petitioner to advise the Court whether 10 he desired to proceed with the original petition or if he did, in fact, desire to file an amended petition. 11 On August 26, 2016, Petitioner filed a notice of options pursuant to the Court’s order. (Doc. 12 No. 76.) Petitioner states he did intend to file an amended petition, because it was what he believed he 13 was required to do according to the Ninth Circuit’s order in Appeal No. 15-17278. (Doc. No. 76, Ex. 14 U.) However, that order concerned other cases Petitioner had pending in the Northern District, 15 specifically, Case Nos. 3:13-cv-05352-WHA and 3:14-cv-02052-WHA. The order was not issued in 16 any appeals concerning the instant case and therefore has no application here. 17 Nevertheless, Petitioner seeks to proceed with the amended petition, which is his right under 18 Fed. R. Civ. P. 15(a). Petitioner complains that the Court stated the amended petition would be 19 dismissed because the amended petition did not contain any claims, but he claims the amended 20 petition did in fact contain two claims. Petitioner reiterated these arguments in a motion to compel 21 filed on September 12, 2016. Petitioner is correct that the amended petition does in fact present two 22 claims. While not set forth in the form petition, Petitioner referred to attached pages where he sets 23 forth two claims with supporting factual arguments. (Doc. No. 68, pp. 15, 17.) Therefore, 24 Petitioner’s motion to amend will be granted. The Court notes that Respondent filed a motion to 25 dismiss on August 17, 2016. Respondent will be granted leave to file a supplemental brief to her 26 motion to dismiss, however, such brief is optional since Respondent addressed the amended petition as 27 well as the initial petition in her motion. Petitioner will then be granted leave to file an opposition. 28 Should Petitioner file an opposition, Respondent will then be permitted to file a reply. 2 ORDER 1 2 Accordingly, the Court ORDERS: 3 1) Petitioner’s motion to amend (Doc. No. 68) is GRANTED; 4 2) The motion to amend is construed as a first amended petition (Doc. No. 68); 5 3) Petitioner’s motion to compel (Doc. No. 77) is DISMISSED as moot; 6 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; 7 8 5) Within 21 days after the date Respondent files her supplemental brief or statement she will 9 not file a supplemental brief, Petitioner SHALL file an opposition or statement of nonopposition to the motion. 10 11 6) Respondent may file a reply to the opposition, if any, within seven days after the opposition is served. 12 13 14 15 16 IT IS SO ORDERED. Dated: September 15, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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