Shaw v. State of California et al

Filing 13

ORDER TO SHOW CAUSE; VACATING ORDER GRANTING IN FORMA PAUPERIS STATUS; AND ADDRESSING PENDING MOTION. Motions terminated: 9 MOTION to request for ruling based on misconduct of the State of California filed by John Shaw.. Signed by Judge Claudia Wilken on 6/30/09. (scc, COURT STAFF) (Filed on 6/30/2009)

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 v. JOHN SHAW,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 09-00077 CW (PR) Petitioner, ORDER TO SHOW CAUSE; VACATING ORDER GRANTING IN FORMA PAUPERIS STATUS; AND ADDRESSING PENDING MOTION /

ROBERT K. WONG, Warden, Respondent.

Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He also filed

a motion for leave to proceed in forma pauperis (IFP) and a motion for appointment of counsel. In an Order dated February 2, 2009, the Court denied his motion for appointment of counsel and granted his motion for leave to proceed IFP. However, the Court's records indicate that

Plaintiff actually paid the full filing fee of $5.00 on January 15, 2009. See Receipt no. 54611004527. Therefore, the Court's Order

granting IFP status to Petitioner is VACATED, and the directive that he pay the full filing fee is RESCINDED. On February 19, 2009, Petitioner filed a "Motion to Request for Ruling Based on Misconduct of the State of California," in which he challenges the conditions of his confinement at the Santa Clara County Jail stemming from an incident on February 17, 2009. A federal habeas petition is not the proper way to raise such claims. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil

rights action proper method of challenging conditions of confinement). Accordingly, Petitioner's "Motion to Request for

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Ruling Based on Misconduct of the State of California" is DENIED. His claims attacking the conditions of his confinement are more appropriately addressed in a civil rights complaint pursuant to 42 U.S.C. § 1983. Therefore, if Petitioner wishes to pursue such

claims, he may do so by filing a new civil rights action accompanied by the requisite $350.00 filing fee or an IFP application. The Court now reviews the pending habeas petition in this action. It does not appear from the face of the petition that it Good cause appearing, the Court hereby issues

is without merit.

the following orders: 1. The Court's February 2, 2009 Order granting IFP status to

Petitioner is VACATED, and the directive that he pay the full filing fee is RESCINDED. 2. Petitioner's "Motion to Request for Ruling Based on If Petitioner

Misconduct of the State of California" is DENIED.

wishes to pursue his claims attacking the conditions of his confinement at the Santa Clara County Jail, he may do so by filing a new civil rights action accompanied by the requisite $350.00 filing fee or an IFP application. The Clerk of the Court shall

send Petitioner a blank civil rights form and a blank IFP application along with his copy of this Order. 3. The Clerk of the Court shall serve a copy of this Order

and the petition and all attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this Order on

Petitioner at his current address. 2

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4.

Respondent shall file with this Court and serve upon

Petitioner, within one-hundred twenty (120) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the

Answer a copy of all portions of the relevant state records that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. 5. If Petitioner wishes to respond to the Answer, he shall

do so by filing a Traverse with the Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty (60) days after the date Petitioner is served with Respondent's Answer. 6. Respondent may file a motion to dismiss on procedural

grounds in lieu of an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file

with the Court and serve on Respondent an opposition or statement of non-opposition to the motion within sixty (60) days of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply within fifteen (15) days of receipt of any opposition. 7. It is Petitioner's responsibility to prosecute this case.

Petitioner must keep the Court and Respondent informed of any change of address and must comply with the Court's orders in a timely fashion. Petitioner must also serve on Respondent's counsel 3

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all communications with the Court by mailing a true copy of the document to Respondent's counsel. 8. Extensions of time are not favored, though reasonable Any motion for an extension of time

extensions will be granted.

must be filed no later than ten (10) days prior to the deadline sought to be extended. 9. The Clerk of the Court is directed to substitute San

Quentin State Prison Warden Robert K. Wong as Respondent in place of Petitioner's former custodian, Chief Flores at the Santa Clara County Jail. 10. This Order terminates Docket no. 9.

IT IS SO ORDERED. Dated: 6/30/09 CLAUDIA WILKEN 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 John Shaw G60830 San Quentin State Prison Badger Unit 143 San Quentin, CA 94974 JOHN SHAW, Plaintiff, v. STATE OF CA et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-00077 CW 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 June 30, 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.

w/CR form

Attorney General State of California 455 Golden Gate Avenue, #11000 San Francisco, CA 94102 Robert K. Wong, Warden San Quentin State Prison San Quentin, CA 94974 Dated: June 30, 2009

Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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