Harris v. Hobbs

Filing 10

ORDER OF DISMISSAL (SI, COURT STAFF) (Filed on 6/5/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES D. HARRISON,

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United States District Court
For the Northern District of California

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No. C 11-155 SI (pr)

Plaintiff,

ORDER OF DISMISSAL

v.

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M. GARNER and F. GARNER; et al.,

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Defendants.
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On January 11, 2011, this action was opened when the court received from plaintiff a

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document with a case caption not matching any of his other cases that was labeled "Before 2005

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# Untitled" on the first page and had attached a trust withdrawal form, a copy of a CDC-115 rule

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violation report, a "personal package program" list from the prison, and a life prisoner

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documentation hearing notice.

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needed to file a civil rights complaint form and an in forma pauperis application, or the action

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would be dismissed. He then sent the civil rights complaint form back to the court, leaving it

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blank except that he filled in the case caption and his address on the first page, dated and signed

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the last page, and attached to it a copy of his inmate trust account statement. (Docket # 4.) He

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also sent in an in forma pauperis application that was left blank, except for his name and case

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caption on the first page and signature on the last page. (Docket # 5.) He also sent in his inmate

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trust account statement and certification form. (Docket # 6.) He also sent in a motion for leave

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to file an amended complaint, in which he stated that he wanted to amend his complaint to

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substitute M. Garner and F. Garner for the Jon Doe defendants, but provided no allegations

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against those defendants (and those defendants' names do not appear on the rule violation report

That day, the court sent written notices to plaintiff that he

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attached to the original complaint) and attached to his motion several blank forms for prison

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visitors. (Docket #7.)

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The motion to amend is GRANTED. (Docket # 7.) M. Garner and F. Garner have been
substituted in as defendant in place of John Doe defendants.

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The action is DISMISSED for failure to state a claim upon which relief may be granted.

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Leave to amend will not be granted because it would be futile. Harrison already notified by the

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clerk that he needed to submit a complaint, and chose to respond by filing a complaint that was

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mostly blank and did not state any claim for relief, and followed that with a motion to amend

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where he merely identified names for Doe defendants but provided no allegations against those

United States District Court
For the Northern District of California

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persons.

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To the extent Harrison wants to challenge the CDC-115 rule violation report attached to

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his first filing, he must file a petition for writ of habeas corpus to do so. This is because the

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discipline imposed included a 90-day credit forfeiture and a favorable decision would affect the

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duration of his confinement. A petition for writ of habeas corpus is the exclusive method by

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which he may challenge the execution of his sentence in this court. See Preiser v. Rodriguez,

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411 U.S. 475, 500 (1973).

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Harrison must exhaust state judicial remedies by presenting the highest state court available with

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a fair opportunity to rule on the merits of each and every issue he seeks to raise in federal court.

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See 28 U.S.C. § 2254(b)(1)(A),(c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). He might, for

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example, file a habeas petition in the California Supreme Court to exhaust state judicial

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remedies.

Before he may file a federal petition for writ of habeas corpus,

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The clerk shall close the file.

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IT IS SO ORDERED.

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DATED: June 3, 2011
SUSAN ILLSTON
United States District Judge

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