Rasheed v Gipson

Filing 14

ORDER TO SHOW CAUSE;AND ADDRESSING PETITIONER'S PENDING MOTION. Habeas Answer due by 3/29/2013. Signed by Judge Yvonne Gonzalez Rogers on 1/28/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 1/28/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ORDER TO SHOW CAUSE AND
ADDRESSING PETITIONER'S PENDING
MOTION

Petitioner,
vs.
J. SOTO, Acting Warden,

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Respondent.

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United States District Court
For the Northern District of California

No. C 11-05767 YGR (PR)

J. SMITH, aka TAHEE RASHEED,

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Petitioner, a state prisoner currently incarcerated at California State Prison - Los Angeles

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County (LAC), has filed the present action. He has been granted leave to proceed in forma pauperis

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(IFP).

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In an Order dated October 23, 2012, the Court determined that Petitioner was seeking federal

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habeas relief from his state convictions. However, Petitioner did not use this Court's habeas petition

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form. The Court found that the petition he had submitted was not comprehensible. Therefore, the

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petition was dismissed with leave to amend. Petitioner was instructed to filed an amended petition

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using the proper form within thirty days.

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On November 19, 2012, Petitioner filed an amended petition.

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On November 29, 2012, Petitioner filed a motion entitled, "Request of Extension of Time to

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File the Injunction," in which he complains that LAC prison officials have denied him his "legal

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property, canteen, mailouts, access to the law library, [and] access to legal materials." (Nov. 29,

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2012 Mot. at 1.)

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It does not appear from the face of the amended petition that it is without merit. Good cause
appearing, the Court hereby issues the following orders:
1.

The Clerk of the Court shall serve a copy of this Order and the amended petition and

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all attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the

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State of California. The Clerk shall also serve a copy of this Order on Petitioner at his current

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address.

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2.

Respondent shall file with this Court and serve upon Petitioner, within sixty-three

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(63) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued.

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Respondent shall file with the Answer a copy of all portions of the relevant state records that have

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been transcribed previously and that are relevant to a determination of the issues presented by the

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petition.

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3.

If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with

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the Court and serving it on Respondent within sixty-three (63) days of his receipt of the Answer.

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Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty-

United States District Court
For the Northern District of California

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three (63) days after the date Petitioner is served with Respondent's Answer.
4.

Respondent may file with this Court and serve upon Petitioner, within sixty-three

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(63) days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an

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Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on

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Respondent an opposition or statement of non-opposition to the motion within sixty-three (63) days

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of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply

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within fourteen (14) days of receipt of any opposition.

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5.

It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court

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and Respondent informed of any change of address and must comply with the Court's orders in a

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timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose

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address changes while an action is pending must promptly file a notice of change of address

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specifying the new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint

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when: (1) mail directed to the pro se party by the Court has been returned to the Court as not

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deliverable, and (2) the Court fails to receive within sixty days of this return a written

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communication from the pro se party indicating a current address. See L.R. 3-11(b); see also

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Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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Petitioner must also serve on Respondent's counsel all communications with the Court by
mailing a true copy of the document to Respondent's counsel.
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6.

Extensions of time are not favored, though reasonable extensions will be granted.

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Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

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deadline sought to be extended.

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J. Soto, the current acting warden of the prison where Petitioner is incarcerated, has

been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
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Petitioner has filed a "Request of Extension of Time to File the Injunction" (Docket

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No. 13), in which he challenges the conditions of his confinement at LAC. A federal habeas petition

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is not the proper way to raise such claims. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)

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(civil rights action proper method of challenging conditions of confinement). Accordingly,

United States District Court
For the Northern District of California

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Petitioner's motion is DENIED. His claims attacking the conditions of his confinement are more

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appropriately addressed in a civil rights complaint pursuant to 42 U.S.C. § 1983. Therefore, if

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Petitioner wishes to pursue such claims, he may do so by filing a new civil rights action

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accompanied by the requisite filing fee or an IFP application in the correct venue. Because LAC is

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located in Lancaster, California, which lies within the venue of the Central District of California,

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and Petitioner seeks immediate injunctive relief and damages from LAC prison officials for various

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conditions of his current confinement, it is in the interests of justice and convenience of the parties

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for these claims to be pursued in the Western Division of the United States District Court for the

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Central District of California. Therefore, Petitioner may file a civil rights action in that venue if he

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wishes to pursue such claims.

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9.

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IT IS SO ORDERED.

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This Order terminates Docket No. 13.

DATED: January 28, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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