Brumfield v. City of San Francisco et al

Filing 10

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge ARMSTRONG on 11/4/09. (lrc, COURT STAFF) (Filed on 11/16/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

KENNETH L. BRUMFIELD, Plaintiff, v. CITY OF SAN FRANCISCO, et al., Defendants. /

No. C 08-04257 SBA (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND

This case was opened when Plaintiff, a state prisoner, filed a complaint on the Court's civil rights form. Plaintiff thereafter filed an application to proceed in forma pauperis (IFP). The Court has granted him leave to proceed IFP. Although Plaintiff submitted his claims on a civil rights form, it is apparent that he intended to file a petition for a writ of habeas corpus because he claims he is being "illegally detailed" on "charges refiled Feb. 2008 based on 'erroneous information.'" (Compl. at 3.) Accordingly, the Clerk of the Court shall reclassify this case on the docket as a habeas action. The filing fee will be $5.00. The civil rights form Plaintiff used does not include the information necessary to pursue a habeas action. Based on the information on the form, the Court cannot determine whether Plaintiff has exhausted his claims in the California courts before filing this action. Federal habeas petitioners are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The state's highest court must be given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke "one complete round of the State's established appellate review process"). Therefore, Plaintiff cannot present claims to this Court which he has not first raised in the

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highest state court available, the Supreme Court of California, usually by direct appeal or by way of a state habeas petition. The Court cannot fairly evaluate this habeas action in its present state. Accordingly, the Court will allow Plaintiff an opportunity to file amended claims on the Court's habeas form to correct these deficiencies, if he wishes to go forward with this action as a habeas action. The failure to file a completed habeas form as directed below will result in the dismissal of this action without prejudice. CONCLUSION 1. of $5.00. 2. No later than thirty (30) days from the date of this Order, Plaintiff shall file with the The Clerk shall reclassify this case on the docket as a habeas action with a filing fee

Court the attached 28 U.S.C. § 2254 habeas petition form, completed in full, including the state postconviction relief he has sought and any claims he seeks to raise in federal court. He should clearly write in the correct caption and case number for this action, C 08-04257 CW (PR). 3. If Plaintiff fails to file a completed § 2254 habeas petition form within the thirty-day

deadline, the case will be closed for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. See Link v. Wabash R.R., 370 U.S. 626, 633 (1962) (pursuant to Rule 41(b), a district court may on its own motion, dismiss an action for failure to prosecute or to comply with a court order); see also Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987) (the district court should afford the litigant prior notice before dismissing for failure to prosecute). 4. The Clerk send Plaintiff a blank § 2254 habeas petition form.

IT IS SO ORDERED. DATED: 11/4/09 SAUNDRA BROWN ARMSTRONG United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

KENNETH L. BRUMFIELD, Plaintiff, v. SF CITY OF et al, Defendant. /

Case Number: CV08-04257 SBA CERTIFICATE OF SERVICE

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 November 16, 2009, 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.

Kenneth L. Brumfield 2306531 California State Prison - San Quentin San Quentin, CA 94964 Dated: November 16, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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