Ashley v. Matteucci

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND; AND INSTRUCTIONS TO CLERK. Signed by Judge Yvonne Gonzalez Rogers on 4/11/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 4/11/2013)

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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 OF DISMISSAL WITH LEAVE
TO AMEND; AND INSTRUCTIONS TO
CLERK

Petitioner,

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No. C 13-0918 YGR (PR)

HORACE E. ASHLEY, JR.,

v.
DOLLY MATTEUCCI,
Respondent.

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/

United States District Court
For the Northern District of California

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This case was commenced when Petitioner, who is currently being held in custody at the
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Napa State Hospital ("NSH"), filed a federal habeas corpus petition form. He has paid the $5.00
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filing fee.
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However, it is unclear exactly what Petitioner is challenging in his petition. The Court
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cannot fairly evaluate the petition in its present state, nor can the Court be certain that he intended to
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file a 28 U.S.C. § 2254 petition at all. In his petition, Petitioner states that he was convicted of
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"assault with a deadly weapon" on an unspecified date. (Pet. at 2.) He adds that he was "forced to
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testify against himself" and "denied [his] right to trial by jury." (Id. at 6.) However, he also seems
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to allege that his constitutional rights were violated by NSH Executive Director Dolly Matteucci,
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who denied his right to refuse "psychotrophic [sic] medication" on an unspecified date. (Id. at 4-5.)
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Accordingly, the Court will dismiss the petition with leave to amend and allow Petitioner an
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opportunity to file either a proper 28 U.S.C. § 2254 petition on the enclosed habeas form or a proper
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42 U.S.C. § 1983 complaint on the enclosed civil rights form.
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If Petitioner chooses to file a 28 U.S.C. § 2254 petition, he must clearly state his grounds for
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relief and whether he is challenging his criminal conviction and sentence, the conditions of his
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confinement, or the execution of his sentence. He must also set out how he has exhausted his
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claims, that is, what he did to present them first to the highest state court available, which is the
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Supreme Court of California.
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If Petitioner chooses to file a 42 U.S.C. § 1983 complaint, Petitioner is particularly directed

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to name as defendants each person who caused a violation of his constitutional rights and explain

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what each person did to cause the violation. Liability under § 1983 arises only upon a showing of

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personal participation by the defendant. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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There is no respondeat superior liability under § 1983, i.e., no liability under the theory that a

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supervisor is responsible for the actions or omissions of his or her subordinate. See Leer v. Murphy,

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844 F.2d 628, 634 (9th Cir. 1988) (liability may be imposed on individual defendant under § 1983

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only if plaintiff can show that defendant proximately caused deprivation of federally protected

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right). The Court further notes that the filing fee for a civil rights action is $350.00. Before this

United States District Court
For the Northern District of California

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action may proceed as a civil rights action, Petitioner must pay the $350.00 filing fee, or file another

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application for leave to proceed IFP with supporting documents, no later than twenty-eight (28)

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days from the date of this Order.1 He shall include with his payment or with his IFP application a

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clear indication that it is for the above-referenced case number, Case No. C 13-0918 YGR (PR).

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CONCLUSION
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The instant petition is DISMISSED with leave to amend within twenty-eight (28)

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days from the filing date of this Order. Petitioner shall file either a civil rights complaint on the

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enclosed complaint form or a first amended petition on the enclosed habeas form, as set forth below.

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Failure to do so within the twenty-eight-day deadline shall result in dismissal of this action

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without prejudice.

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2.

Petitioner must write the case number for this action -- Case No. C 13-0918 YGR

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(PR) -- on the form and complete all sections of the form. Petitioner shall take care to write clearly

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and legibly, so that the Court can read what he writes.

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If Petitioner chooses to file an amended habeas petition, it must include the words

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"AMENDED PETITION" on the first page. The amended petition shall be on the Court's form for

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habeas petitions, a copy of which is enclosed with Petitioner's copy of this Order.

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Because Petitioner originally filed this case as a habeas corpus action, the filing fee was
$5.00. He has paid the full filing fee, as mentioned above. If he chooses to proceed with this case as
civil rights action, he must pay the full $350.00 filing fee for civil rights actions.
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If Petitioner chooses to file a civil rights action, he must complete the Court's civil rights

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complaint form, a copy of which is enclosed with his copy of this Order. Furthermore, Petitioner

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must pay the requisite $350.00 filing fee in this action no later than twenty-eight (28) days from the

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date of this Order. He shall include with his payment a clear indication that it is for the

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above-referenced case number, Case No. C 13-0918 YGR (PR). In the event that Petitioner is

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unable to pay the filing fee, he shall submit an IFP application, trust account statement and

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certificate of funds no later than twenty-eight (28) days from the date of this Order. Failure to pay

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the filing fee or file the requisite documents (along with his civil rights complaint form) within

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the twenty-eight-day deadline shall result in dismissal of this action without prejudice.

United States District Court
For the Northern District of California

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3.

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

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

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Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes

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while an action is pending must promptly file a notice of change of address specifying the new

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address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail

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directed to the pro se party by the Court has been returned to the Court as not deliverable, and

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(2) the Court fails to receive within sixty days of this return a written communication from the pro se

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party indicating a current address. See L.R. 3-11(b).

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4.

The Clerk of the Court shall send Petitioner a blank civil rights complaint form and a

blank habeas corpus petition form along with his copy of this Order.
IT IS SO ORDERED.

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DATED: April 11, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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