Fritz v. Smith

Filing 9

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Magistrate Judge Donna M. Ryu on 11/9/15. (ig, COURT STAFF) (Filed on 11/9/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS FRITZ,

Case No. 15-cv-03561-DMR (PR)

Petitioner,
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ORDER OF DISMISSAL WITHOUT
PREJUDICE

v.
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SHERIFF LAURIE SMITH,
Respondent.

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On July 24, 2015, Petitioner, who is in custody at the Elmwood Correctional Facility and

United States District Court
Northern District of California

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proceeding pro se, filed a handwritten document entitled, “Writ of Habeas Corpus” with the court

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in the instant case. The Clerk of the Court opened the case as a habeas corpus action, and it has

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been assigned to the undersigned Magistrate Judge.

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On August 7, 2015, the Clerk sent a notice to Petitioner informing him that his action

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could not go forward until he filed a fully completed petition on the proper habeas corpus petition

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form. Petitioner was informed that he had to do so within twenty-eight days or his action would

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be dismissed. The Clerk also sent Petitioner another notice directing him to either pay the filing

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fee or file a completed prisoner’s in forma pauperis (“IFP”) application within twenty-eight days

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or his action would be dismissed. The Clerk sent Petitioner a blank habeas corpus petition form as

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well as a blank IFP application.

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On August 11, 2015, Petitioner filed another handwritten document entitled, “Amended

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Writ of Habeas Corpus.” Dkt. 5. However, Petitioner submitted his amended petition on lined

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paper instead of using the proper habeas corpus petition form. See id. Furthermore, Petitioner

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neither paid the requisite filing fee nor submitted a completed IFP application.

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On the same date, Petitioner consented to magistrate judge jurisdiction. Dkt. 6.

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On September 28, 2015, the Clerk sent a second notice to Petitioner again informing him

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that his action could not go forward until he filed his petition on the proper habeas corpus petition

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form, completed in full. The Clerk also sent a second notice informing him that he had neither

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paid the filing fee nor submitted a completed IFP application. The Clerk sent Petitioner a blank

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habeas corpus petition form as well as a blank IFP application and told him that he must

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(1) submit his petition on the proper form and (2) either pay the filing fee or return a completed

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IFP application within twenty-eight days or his action would be dismissed.
More than twenty-eight days have passed, and Petitioner has not filed his petition on the

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proper form, paid the filing fee, returned the IFP application, or otherwise communicated with the

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court.
IT IS HEREBY ORDERED THAT this action is DISMISSED WITHOUT PREJUDICE. 1

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The Clerk shall enter judgment, terminate all pending motions, and close the file.
IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: November 9, 2015

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_____________________________________
DONNA M. RYU
United States Magistrate Judge

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As mentioned above, Plaintiff has consented to magistrate judge jurisdiction. The undersigned
Magistrate Judge, then, has jurisdiction to dismiss this action, even though Defendants have not
been served or consented to magistrate jurisdiction. Cf. Neals v. Norwood, 59 F.3d 530, 532 (5th
Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison inmate’s action under
42 U.S.C. § 1983 as frivolous without consent of defendants because defendants had not been
served yet and therefore were not parties).
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS FRITZ,

Case No. 4:15-cv-03561-DMR

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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LAURIE SMITH,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on November 9, 2015, I SERVED a true and correct copy(ies) of the Order of
Dismissal Without Prejudice, 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.

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Thomas Fritz ID: ECJ562
Booking 14024734
701 S. Able St.
Milpitas, CA 95035

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Dated: November 9, 2015

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ivy Lerma Garcia, Deputy Clerk to the
Honorable DONNA M. RYU

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