Martinez v. Kam

Filing 5

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/24/2017 ORDERING pending petition for habeas corpus is dismissed without prejudice. Petitioner to file amended petition or complaint within 45 days of the service of this Order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENNY MARTINEZ,

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Petitioner,

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No. 2:17-cv-01394 GGH

v.

ORDER

TIM P. KAM,
Respondent.

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Petitioner purports to be proceeding in this action pro se. The complaint was filed on June

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6, 2017, in the United States District Court for the Eastern District of Washington. ECF No. 1.

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On July 5, 2017, Senior District Court Judge Edward F. Shea in that court ordered that the matter

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be transferred to the Eastern District of California insofar as petitioner is incarcerated within the

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District. ECF No. 2. The petition itself was submitted by Mr. Frank Martinez, who identifies

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himself as the brother of petitioner who holds a power of attorney to act on his behalf. As Judge

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Shea stated in his order, only a licensed attorney may appear on behalf of a plaintiff, and

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possession of a power of attorney by a non-attorney does not overcome that limitation. Johns v.

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County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) citing C. E. Pope Equity Trust v. United

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States, 818 F.2d 696, 697 (9th Cir. 1987). This court concurs in Judge Shea’s findings.

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In light of the foregoing, this matter will be dismissed without prejudice and petitioner
may resubmit a Petition under his own name as representative and identifying the means by
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which the court may contact him directly going forward.
In addition, any such amendment in the form of a petition for habeas corpus must identify

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the basis for such a petition by stating how his federal constitutional rights are compromised by

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that incarceration. Alternatively, it appears that petitioner may actually be seeking to recover his

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social security benefits which he alleges have been seized by the government and continue to be

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withheld from him. If that is the true basis of his complaint, it does not sound in habeas corpus at

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all as he does not appear to be challenging the facts underlying his arrest and incarceration. He

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may, therefore choose to file a civil complaint if he has exhausted his administrative remedies

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with the Social Security Administration, or may file, if appropriate, a constitutional tort action in

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which case he must allege a specific government agent acting under color of law who effected the

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seizure and continues to do so and seek damages for the invasion of his constitutional rights.

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In light of the foregoing, it is THEREFORE ORDERED that:

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1.

The pending petition for habeas corpus is dismissed without prejudice;

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2.

Petitioner shall file an amended petition or a compliant, if he chooses to do so,

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pursuant to the conditions stated above within 45 days of the service of this Order;
3.

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a.

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Representation by a bona fide licensed attorney as his representative for

purpose of this litigation, or,

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Any such amended petition/complaint shall provide either:

b.

Petitioner may appear pro se (represent himself) and must set forth an

address at which petitioner may be personally served with any further Orders;
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The Clerk of the Court shall serve this Order upon petitioner in care of Frank

Martinez at the address reflected on the petition now pending.
IT IS SO ORDERED.
DATED: July 24, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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