Mosqueda v. Jaquez et al

Filing 8

ORDER GRANTING 7 MOTION FOR RECONSIDERATION; VACATING JULY 30, 2010 DISMISSAL; REOPENING CASE; DENYING LEAVE TO FILE AMENDED DUE PROCESS CLAIM; AND GRANTING EXTENSION TO FILE CLAIMS IN CIVIL RIGHTS COMPLAINT AND TO COMPLETE NEW IFP APPLICATION by Judge Claudia Wilken.(ndr, COURT STAFF) (Filed on 3/29/2011)

Mosqueda v. Jaquez et al

Doc. 8

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ADRIAN T. MOSQUEDA, Petitioner, No. C 10-0595 CW (PR) ORDER GRANTING MOTION FOR RECONSIDERATION; VACATING JULY 30, 2010 DISMISSAL; REOPENING CASE; DENYING LEAVE TO FILE AMENDED DUE PROCESS CLAIM; AND GRANTING EXTENSION TO FILE CLAIMS IN CIVIL RIGHTS COMPLAINT AND TO COMPLETE NEW IFP APPLICATION / (Docket no. 7) This case was commenced when Petitioner filed a document captioned "Petition For A Writ of Habeas Corpus," challenging his indeterminate placement in the Pelican Bay State Prison Security Housing Unit based on his validation as a gang member. On June 25, 2010, the Court issued an order of dismissal with leave to amend and gave Petitioner thirty days from the date of the Order to amend to allege a § 1983 action because his claims were not cognizable in federal habeas corpus. The Court stated that the

5 v. 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 FRANCISCO JAQUEZ, Warden, et al., Respondents.

failure to timely file a civil rights complaint would result in dismissal for failure to prosecute. In an Order dated July 30, 2010, the Court issued an Order of Dismissal stating: "The time for Petitioner to file his complaint has passed, and no complaint has been filed." at 1.) (July 30, 2010 Order

Therefore, the Court dismissed this action for failure to

prosecute pursuant to Federal Rule of Civil Procedure 41(b). Before the Court is Petitioner's motion for reconsideration under Rule 60(b) of the Federal Rules of Civil Procedure (docket no. 7). Also before the Court is his "Request [for] Leave to Amend

Petitioner for Writ of Habeas Corpus to Include Additional Claim

Dockets.Justia.com

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Affecting Prison Sentence Duration" (docket no. 6) as well as his amended pleading (docket no. 6-1). For the reasons outlined below, the Court GRANTS Petitioner's motion for reconsideration, vacates its July 30, 2010 Order of Dismissal, and directs the Clerk of the Court to reopen this action. Petitioner's request for leave to amend his petition to

add a due process claim is DENIED. DISCUSSION I. Motion for Reconsideration Rule 60(b) provides for reconsideration only upon a showing of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief. Civ. P. 60(b). Here, Petitioner alleges that he submitted his amended pleading and his "Request [for] leave to amend Petition for Writ of Habeas Corpus to include additional claim affecting Prison sentence duration" before the July 25, 2010 deadline. He claims he See Fed. R.

submitted these documents "for photocopying and mailing on July 18, 2010 . . . . " (Pet'r Mot. for Recons. at 2.) To substantiate

this, Petitioner has submitted a copy of his "Request for Legal Photcopying Service," which shows that he submitted his photocopying request on July 18, 2010. Petitioner argues that

"under the 'Mailbox Rule,' an inmate's legal documents are deemed filed once these are turned over to prison officials for mailing." (Id.) These facts present adequate grounds for reconsideration. 2

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The Court finds that Petitioner's amended pleading and motion to amend are deemed filed on July 18, 2010, the date it was signed an delivered to prison authorities for mailing. See Saffold v.

Newland, 250 F.3d 1262, 1268 (9th Cir. 2001), vacated and remanded on other grounds, Carey v. Saffold, 536 U.S. 214 (2002) (holding that a federal or state habeas petition is deemed filed on the date the prisoner submits it to prison authorities for filing, rather than the date it is received by the courts). Accordingly,

Petitioner's motion for reconsideration (docket no. 7) is GRANTED, the Court's July 30, 2010 Order of Dismissal is vacated, and the Clerk shall reopen this action. II. Motion for Leave to Amend Petition Petitioner filed a motion to amend his petition to add a new claim, specifically "a due process violation which directly affects the duration of [his] prison sentence." 2.) (Mot. for Leave to Am. at

In the alternative, if the Court denies his motion, Petitioner

requests an extension of time to file his remaining claims in a civil rights complaint and to complete a new in forma pauperis (IFP) application. Habeas petitions may be amended or supplemented as provided in the Federal Rules of Civil Procedure. See 28 U.S.C. § 2242; Although

Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000).

Federal Rule of Civil Procedure 15(a) requires that leave to amend "shall be freely given when justice so requires," the court may consider whether there is any evidence of undue delay, bad faith or dilatory motives with respect to the filing of an amendment when determining whether leave to amend should be granted. 577-78. 3 See id. at

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Petitioner submitted his new claim in a document entitled, "Amendment to Petition for Writ of Habeas Corpus to Include Additional Claim Affecting Prison Sentence Duration." Petitioner

alleges that he is challenging as a violation of his constitutional rights the February 3, 2010 decision to deny him parole by the California Board of Parole Hearings (Board). Petitioner was

provided an opportunity to be heard and a statement of reasons for the denial pursuant to California Penal Code § 3041.5(a)(2). (Attach. to Amendment, Ex. E-5.) Specifically, he states, "Being

that the board's decision denying Petitioner parole is predicated on [his] faulty gang validation and S.H.U confinement, the Board did not rely on 'some evidence' in denying Petitioner parole." (Amendment at 3.) However, no such due process claim is cognizable

under federal habeas review because the record shows that Petitioner received adequate process at his 2010 parole suitability hearing. See Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 862

(2011) (a prisoner subject to California's parole statute receives adequate process when he is allowed an opportunity to be heard and is provided with a statement of the reasons why parole was denied). Because Petitioner received adequate process at his 2010 parole suitability hearing, then his alleged due process claim stemming from the Board's 2010 denial is not cognizable on federal habeas review. See Swarthout, 131 S. Ct. at 862.

Accordingly, for the above reasons, the due process claim raised in the amendment petition is not cognizable on federal habeas corpus review. Therefore, the Court DENIES Petitioner's

motion for leave to amend his petition to add that due process claim. His request for an extension of time to file his remaining 4

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claims on a civil rights complaint form and to complete a new IFP application is GRANTED, as directed below. CONCLUSION For the foregoing reasons, the Court GRANTS Petitioner's motion for reconsideration (docket no. 7). The Clerk is directed

to vacate the Court's July 30, 2010 Order of Dismissal and to REOPEN this action. The Court DENIES Petitioner's motion for leave to amend to add a new claim (docket no. 6) because his due process claim relating to the Board's 2010 parole denial is not appropriate for federal habeas corpus review. However, the Court GRANTS Petitioner's

request for an extension of time to file his remaining claims in a civil rights complaint and to complete a new IFP application. Petitioner must file his complaint no later than thirty (30) days from the date of this Order. number for this action -Petitioner must write the case

Case No. C 10-00595 CW (PR) -- on the Petitioner is

form and complete all sections of the form.

particularly directed to name as defendants each person who caused a violation of his constitutional rights and explain what each person did to cause the violation. Liability under § 1983 arises

only upon a showing of personal participation by the defendant. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). There is

no respondeat superior liability under § 1983, i.e. no liability under the theory that a supervisor is responsible for the actions or omissions of his or her subordinate. See Leer v. Murphy, 844

F.2d 628, 634 (9th Cir. 1988) (liability may be imposed on individual defendant under § 1983 only if plaintiff can show that defendant proximately caused deprivation of federally protected 5

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right). Because Petitioner originally filed this case as a habeas corpus action, his previously-filed IFP application was denied without prejudice to filing a new application or paying the full filing fee. (June 25, 2010 Order at 4.) As mentioned in the

Court's June 25, 2010 Order, the filing fee for a civil rights action is $350.00. Petitioner must pay the $350.00 filing fee, or

file an application for leave to proceed IFP, before this action can proceed. If Petitioner alleges that he is unable to pay the

full filing fee at the time of filing, he must submit: (1) an affidavit that includes a statement of all assets he possesses, and (2) a certified copy of his trust fund account statement for the six-month period immediately preceding the filing of the action, obtained from the appropriate official of each prison at which the prisoner is or was confined. See 28 U.S.C. § 1915(a)(1), (2). If

the district court determines that the prisoner is unable to pay the full filing fee at the time of filing, the prisoner will be granted leave to proceed IFP. This means that the filing fee must

be paid by way of an installment plan, according to which the Court first will assess and collect a partial filing fee from the prisoner, and then the prisoner will be required to make monthly payments of twenty percent of the preceding month's income credited to the prisoner's account until the full $350.00 filing fee is paid. Id. § 1915(b)(1). The agency having custody of the prisoner

is responsible for forwarding to the Court payments from the prisoner's account each time the amount in the account exceeds ten dollars. See id. Accordingly, Petitioner is hereby ORDERED to

pay the requisite $350.00 filing fee in this action no later than 6

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thirty (30) days from the date of this Order.

He shall include

with his payment a clear indication that it is for the abovereferenced case number, Case No. C 10-00595 CW (PR). In the event

that Petitioner is unable to pay the filing fee, he shall submit an IFP application, trust account statement and certificate of funds no later than thirty (30) days from the date of this Order. Failure to file a completed civil rights form and to pay the filing fee or file the requisite documents within the thirty-day deadline shall result in dismissal of this action without prejudice. The Clerk of the Court shall send Petitioner a blank civil rights form and the Court's prisoner IFP application form along with his copy of this Order. This Order terminates Docket nos. 6 and 7. IT IS SO ORDERED. Dated: 3/29/2011 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ADRIAN T. MOSQUEDA,

4 Plaintiff, 5 v. 6 FRANCISCO JAQUEZ et al, 7 Defendant. 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 8 Adrian Tamayo Mosqueda E-08547 D7-109 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95531 Dated: March 29, 2011 /

Case Number: CV10-00595 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 March 29, 2011, I SERVED a true and correct copy(ies) of the attached and a blank civil rights form and the Court's prisoner IFP application form, 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.

Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk