(HC) Thompson v. Spearman

Filing 7

ORDER signed by Magistrate Judge Deborah Barnes on 9/10/2020 ORDERING Clerk to file 1 Petition in this action in the case named Thompson v. Spearman, No.2:19-cv-2328 KJM DB and label the petition filed in Thompson v. Spearman, No. 2:19-cv-2328 KJM DB "Petitioners First Amended Petition" on that case's docket. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KANE MICHAEL THOMPSON, 12 Petitioner, 13 14 No. 2:20-cv-0726 KJM DB P v. ORDER M.E. SPEARMAN, 15 Defendant. 16 Petitioner, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 17 18 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons stated below, the court shall direct the Clerk of Court to file the original 20 21 petition filed this matter, herein referred to as “Thompson II,” as petitioner’s first amended 22 petition (“FAP”) in his earlier-filed action, Thompson v. Spearman, No. 2:19-cv-2328 KJM DB P 23 (“Thompson I”). Thereafter, under separate orders in the two respective actions, the court shall: 24 (1) vacate the pending findings and recommendations to dismiss in the Thompson I matter; (2) 25 recommend that the Thompson II matter be dismissed as duplicative, and (3) address the 26 deficiencies in the Thompson I FAP. 27 //// 28 //// 1 I. 2 RELEVANT PROCEDURAL HISTORY On April 13, 2020, in the instant action, the court directed petitioner either to file an 3 application to proceed in forma pauperis or to pay the appropriate filing fee. (See Thompson II, 4 ECF No. 3). Petitioner was given thirty days within which to do so. 5 Thereafter, on May 7, 2020, petitioner filed a letter with the court indicating his intent to 6 file an in forma pauperis application with the court. (Thompson II, ECF No. 4). In it, petitioner 7 also stated that he was having difficulty getting the form completed due to the COVID-19 8 pandemic. (See id.). Petitioner did not, however, provide the court with a date certain by which 9 he believed he would be able to file the application. (See id.). Ultimately, an in forma pauperis 10 application was never filed by petitioner. 11 On August 24, 2020, the court issued an order recommending that this action be 12 dismissed. (Thompson II, ECF No. 5). Petitioner has filed objections to the court’s order. 13 (Thompson II, ECF No. 6). In the filing, petitioner references extension of time and in forma 14 pauperis-related court orders he has received which have confused him. (See id.). He also asserts 15 that he timely filed an in forma pauperis application and that he has also filed an amended 16 petition. (See id.). Nevertheless, he asks the court to send him another application, and he asks 17 for a thirty-day extension of time to file it. (See id.). 18 II. 19 DISCUSSION Based upon petitioner’s representations to the court, it has conducted a search of its 20 database of matters. In so doing, it has determined that petitioner has two actions in this court 21 that are currently open. (See Thompson I, ECF No. 1; see also Thompson II, ECF No. 1). The 22 first-filed action – Thompson I – was opened with this court on November 18, 2019, and the 23 instant action – Thompson II – was opened on April 8, 2020. It appears that the cases have 24 become conflated, in part, because petitioner failed to put case numbers on some of the 25 //// 26 //// 27 28 2 1 documents he filed with the court.1 (See, e.g., Thompson I, ECF Nos. 13, 14; see also Thompson 2 II, ECF No. 1). 3 In the earlier-filed Thompson I, on March 3, 2020, petitioner was ordered to file an 4 amended petition and to do so within thirty days. (Thompson I, ECF No. 12). Thereafter, on 5 April 8, 2020, petitioner filed a petition with the court. (See Thompson II, ECF No. 1). 6 However, it appears that because petitioner neither wrote the case number of Thompson I on the 7 April 2020 pleading, nor identified it as an amended petition, the matter was filed in this court as 8 a new action. That action is the instant Thompson II. (See Thompson II, ECF No. 1 at 1). The 9 fact that Thompson I and Thompson II ultimately raise the same claims which arise from the 10 same conviction and sentence supports these findings. (Compare Thompson I, ECF No. 1, with 11 Thompson II, ECF No. 1). 12 In light of the above, the petition filed in the instant action on April 8, 2020, is effectively 13 what the court shall now construe as the FAP that petitioner should have filed in Thompson I. 14 Consequently, the Clerk of Court shall be directed to file it in Thompson I and identify it on that 15 docket as petitioner’s FAP. 16 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall: 17 1. File the original petition in this action in the case named Thompson v. Spearman, No. 18 2:19-cv-2328 KJM DB, and 19 2. Label the petition filed in Thompson v. Spearman, No. 2:19-cv-2328 KJM DB 20 “Petitioner’s First Amended Petition” on that case’s docket. 21 Dated: September 10, 2020 22 23 24 DLB:13 DB/ORDERS/ORDERS.PRISONER.HABEAS/thom0726.fap2328 25 26 27 28 Petitioner is reminded that it is his responsibility, not the court’s, both to keep track of the cases he has filed with the court and to make certain that he puts case numbers on the documents he submits to it. Doing so not only enables petitioner to avoid the confusion and time lost he has experienced to date; it also preserves this court’s extremely finite resources. 3 1

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