Thomas v. Walker

Filing 22

ORDER OF DISMISSAL WITH LEAVE TO AMEND by Judge Saundra Brown Armstrong DENYING 19 Motion to Appoint Counsel. Petitioner shall file either a Civil Rights Complaint form or an Amended Petition for Writ of Habeas Corpus within (30) thirty-days of this Order. Petitioner must pay the $350.00 filing fee or submit an IFP Application within (30) thirty-days of this Order. (lrc, COURT STAFF) (Filed on 7/30/2010) Modified on 8/2/2010 (jlm, COURT STAFF).

Thomas v. Walker

Doc. 22

1 2 3 4 5 6 7 8 9 10 United 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. JAMES WALKER,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JAMES EDWARD THOMAS, Petitioner,

No. C 10-00591 SBA (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND; DENYING PETITIONER'S SECOND REQUEST FOR APPOINTMENT OF COUNSEL; AND INSTRUCTIONS TO CLERK /

Respondent.

This case was commenced when Petitioner filed a document captioned "Habeas Petition."1 On April 23, 2010, the Court granted Petitioner's application to proceed in forma pauperis (IFP), and it also denied his first request for appointment of counsel. He has recently filed a second request for appointment of counsel. It is unclear exactly what Petitioner is challenging in his "Habeas Petition." The Court cannot fairly evaluate the petition in its present state, nor can the Court be certain that he intended to file a 28 U.S.C. § 2254 petition at all. In the petition, he also seems to allege that his constitutional rights were violated in the County of Santa Clara by officers who arrested him on an unspecified date. Accordingly, the Court will dismiss the petition with leave to amend and allow Petitioner an opportunity to file either a proper 28 U.S.C. § 2254 petition on the enclosed habeas form or a proper 42 U.S.C. § 1983 complaint on the enclosed civil rights form. If Petitioner chooses to file a 28 U.S.C. § 2254 petition, he must clearly state his grounds for relief and whether he is challenging his criminal conviction and sentence, the conditions of his confinement, or the execution of his sentence. He must also set out how he has exhausted his

The Court notes that Petitioner filed his "Habeas Petition" on the Court's civil rights complaint form. On that form and in several of Petitioner's letters, he refers to this action as a his "habeas petition" or a "writ/petition for habeas corpus review." Therefore, the Court assumes that Petitioner intended for this action to be opened as a habeas corpus action, which it was.
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claims, that is, what he did to present them first to the highest state court available, which is the Supreme Court of California. If Petitioner chooses to file a 42 U.S.C. § 1983 complaint, Petitioner is 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 right). The Court further notes that the filing fee for a civil rights action is $350.00. Before this action may proceed as a civil rights action, Petitioner must pay the $350.00 filing fee, or file another application for leave to proceed IFP with supporting documents, no later than thirty (30) days from the date of this Order.2 He shall include with his payment or with his IFP application a clear indication that it is for the above-referenced case number, Case No. C 10-00591 SBA (PR). CONCLUSION 1. The instant petition is DISMISSED with leave to amend within thirty (30) days from

the filing date of this Order. Petitioner shall file either a civil rights complaint on the enclosed complaint form or a first amended petition on the enclosed habeas form, as set forth below. Failure to do so within the thirty-day deadline shall result in dismissal of this action without prejudice. 2. Petitioner must write the case number for this action -- Case No. C 10-00591 SBA

(PR) -- on the form and complete all sections of the form. Petitioner shall take care to write clearly and legibly, so that the Court can read what he writes.

Because Petitioner originally filed this case as a habeas corpus action, the filing fee was $5.00. His IFP application has already been granted, as mentioned above. If he chooses to proceed with this case as civil rights action, the portion of the Court's April 23, 2010 Order granting Petitioner IFP status in this action will be vacated. Instead, his application for leave to proceed IFP will be denied without prejudice to filing a new application or paying the full $350.00 filing fee for civil rights actions.
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If Petitioner chooses to file an amended habeas petition, it must include the words "AMENDED PETITION" on the first page. The amended petition shall be on the Court's form for habeas petitions, a copy of which is enclosed with Petitioner's copy of this Order. If Petitioner chooses to file a civil rights action, he must complete the Court's civil rights complaint form, a copy of which is enclosed with his copy of this Order. Furthermore, Petitioner must pay the requisite $350.00 filing fee in this action no later than thirty (30) days from the date of this Order. He shall include with his payment a clear indication that it is for the above-referenced case number, Case No. C 10-00591 SBA (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 pay the filing fee or file the requisite documents (along with his civil rights complaint form) within the thirty-day deadline shall result in dismissal of this action without prejudice. 3. Petitioner's second motion for appointment of counsel (docket no. 19) is DENIED

without prejudice. 4. It is Petitioner's responsibility to prosecute this case. Petitioner must keep

the Court informed of any change of address and must comply with the Court's Orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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5.

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

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blank habeas corpus petition form along with his copy of this Order. IT IS SO ORDERED. DATED: 7/29/10 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JAMES EDWARD THOMAS, Plaintiff, v. JAMES WALKER et al, Defendant. /

Case Number: CV10-00591 SBA 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 July 30, 2010, 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.

James Edward Thomas F-21197 California State Prison - Folsom P.O. Box 290066 Represa, CA 95671-0066 Dated: July 30, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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