Barton v. People of the State of California

Filing 9

ORDER REOPENING CASE; ORDER DEYING APPLICATION TO PROCEED IN FORMA PAUPERIS. VACATING 6 Order Dismissing Case AND 7 Judgment. ORDER DIRECTING PETITIONER TO PAY FILING Fee due by 10/2/2017. Signed by Chief Magistrate Judge Joseph C. Spero on 8/28/17. (klhS, COURT STAFF) (Filed on 8/28/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM RAY BARTON,

United States District Court
Northern District of California

Petitioner,
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ORDER REOPENING ACTION;

v.
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Case No. 17-cv-00945-JCS (PR)

DAVID BAUGHMAN,
Respondent.

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ORDER DENYING APPLICATION
TO PROCEED IN FORMA
PAUPERIS;
ORDER DIRECTING PETITIONER
TO PAY FILING FEE BY OCTOBER
2, 2017

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This federal habeas action was dismissed because petitioner failed to pay the filing
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fee or perfect his application to proceed in forma pauperis (“IFP”). He since has filed a

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complete IFP application. This action is REOPENED. The Clerk is directed to amend the
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docket accordingly. The judgment (Dkt. No. 7) and the order of dismissal (Dkt. No. 6) are
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VACATED.
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In support of his IFP application, petitioner submitted a certificate of funds. The
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certificate shows that the average deposits to petitioner’s account for the six months

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preceding the filing of the IFP application were $143.33, and the average balance in his
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account for the same time period was $83.69.
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Based on the above, the Court finds that petitioner is able to afford the $5.00 filing

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fee in this action. Accordingly, his application to proceed IFP is DENIED. Petitioner

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shall pay the $5.00 filing fee in this matter by submitting payment to the Clerk of the

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Court on or before October 2, 2017. No extensions of time will be granted. Failure to

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comply with this order will result in the dismissal of this action.

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The Clerk shall amend the docket to reflect that David Baughman, the warden of

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the prison in which petitioner is housed, is the sole respondent in this action. Petitioner

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erroneously named the People of the State of California. Baughman, not the People, is the

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sole proper respondent in this action, as he is the custodian having day-to-day control over
petitioner, the only person who can produce “the body” of the petitioner. Brittingham v.

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United States District Court
Northern District of California

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United States, 982 F.2d 378, 379 (9th Cir. 1992) (quoting Guerra v. Meese, 786 F.2d 414,

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416 (D.C. Cir. 1986)).

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IT IS SO ORDERED.
Dated: August 28, 2017
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM RAY BARTON,

Case No. 17-cv-00945-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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United States District Court
Northern District of California

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PEOPLE OF THE STATE OF
CALIFORNIA,
Defendant.
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on August 28, 2017, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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William Ray Barton ID: B71646
Cal. State Prison-Sacramento
P.O. Box 290066
Represa, CA 95671

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Prison Trust Account for William Ray Barton
Cal. State Prison-Sacramento
P.O. Box 290066
Represa, CA 95671

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USDC- Finance

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Dated: August 28, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO
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