Lynch v. Lynch et al

Filing 4

ORDER DISMISSING CASE Without Prejudice. Signed by Judge Cathy Ann Bencivengo on 4/1/2021.(All non-registered users served order, blank petition, blank ifp form via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAUL ANTHONY LYNCH,

Case No.: 21cv0421 CAB (JLB)
Petitioner,

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v.

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ORDER DISMISSING CASE
WITHOUT PREJUDICE

JEFF LYNCH, Warden, et al.,
Respondent.

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On March 9, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition for

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Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (See ECF No. 1.) On March 12,

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2021, the Court dismissed it without prejudice for failing to satisfy the filing fee

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requirement, for failing to use a complete petition form and for failing to submit a petition

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signed under penalty of perjury. (See ECF No. 2.) Petitioner was instructed that to proceed

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with the instant case, Petitioner must submit “(1) either the $5.00 fee or adequate proof of

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Petitioner’s inability to pay the fee and (2) a completed First Amended Petition form signed

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under penalty of perjury.” (Id. at 3.) On March 26, 2021, Petitioner filed an Amended

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Petition. (ECF No. 3.) Petitioner has not submitted either the required $5.00 filing fee or

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a request to proceed in forma pauperis. For the reasons discussed below, the case is again

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dismissed without prejudice.

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21cv0421 CAB (JLB)

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FAILURE TO SATISFY FILING FEE REQUIREMENT

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Petitioner has again failed to pay the $5.00 filing fee and has failed to move to

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proceed in forma pauperis. Because this Court cannot proceed until Petitioner has either

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paid the $5.00 filing fee or qualified to proceed in forma pauperis, this case is subject to

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dismissal without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254.

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FAILURE TO COMPLETE FORM

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A Petition for Writ of Habeas Corpus must be submitted in accordance with the

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Local Rules of the United States District Court of the Southern District of California. See

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Rule 2(d), 28 U.S.C. foll. § 2254. To comply with the Local Rules, petitions must be

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submitted on a court-approved form and in accordance with the instructions approved by

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the Court. Id.; S.D. Cal. CivLR HC.2(b). While Petitioner has now submitted a petition

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on the proper form and has signed the Petition under penalty of perjury, Petitioner has

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failed to complete key portions of the form. Specifically, Rule 2(c) of the Rules Governing

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Section 2254 Cases requires in relevant part that “[t]he petition must . . . (1) specify all the

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grounds for relief available to the petitioner; (2) state the facts supporting each ground; (3)

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state the relief requested.” Rule 2(c)(1)-(3), 28 U.S.C. foll. § 2254.

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In the Amended Petition, Petitioner lists one ground for relief, entitled “Violation

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5th, 6th, 14 U.S.C. Amendments,” and under supporting facts includes a short section

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entitled “Introduction” which appears to simply recount Petitioner’s 2017 arrest, transport

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to county jail and the filing of a felony complaint. (ECF No. 3 at 6.) While the petition

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form instructs: “State concisely every ground on which you claim that you are being held

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in violation of the constitution, law or treaties of the United States. Summarize briefly the

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facts supporting each ground,” and: “If necessary, you may attach pages stating additional

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grounds and/or facts supporting each ground,” (see id. at 6), Petitioner has not indicated

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the grounds supporting the alleged Fifth, Sixth and Fourteenth Amendment violations nor

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has Petitioner outlined the supporting facts.

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The prior petition, which again did not use the complete form and was not signed

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under penalty of perjury, appears to have contained a sole ground for relief entitled
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21cv0421 CAB (JLB)

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“Ineffective Assistance of Counsel, violation of the 5th, 6th, 14th Amendment, United

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States Constitution,” and similarly started with listing an “Introduction” section under

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supporting facts. (ECF No. 1 at 6.) Yet, that prior filing also included additional pages

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outlining facts underlying the ineffective assistance of counsel claim. (Id. at 7-26.)

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It is unclear whether Petitioner intended to reassert in the Amended Petition the

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ineffective assistance of counsel claim outlined in the original filing but given the absence

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of any such indication in the Amended Petition, the Court cannot simply assume this to be

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the case. Because Petitioner fails to indicate in the Amended Petition the facts underlying

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the sole claim or the basis for the alleged constitutional violation, the instant case is also

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subject to dismissal for failure to satisfy this requirement. See Rule 2(c)(1)-(2), 28 U.S.C.

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foll. § 2254; see also Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.

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Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave

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to amend which are not re-alleged in an amended pleading may be “considered waived if

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not repled.”).

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CONCLUSION AND ORDER

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The case is DISMISSED without prejudice for failure to satisfy the filing fee

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requirement and failure to submit a complete habeas petition. If Petitioner wishes to

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proceed with this case, Petitioner must submit, no later than May 28, 2021, a copy of this

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Order along with: (1) either the $5.00 fee or adequate proof of Petitioner’s inability to pay

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the fee and (2) a completed Second Amended Petition form that cures the pleading

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deficiencies outlined above. The Clerk of Court is directed to send Petitioner a blank

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Southern District of California amended §2254 habeas petition form and in forma pauperis

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21cv0421 CAB (JLB)

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application along with a copy of this Order.

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IT IS SO ORDERED.

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Dated: April 1, 2021

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21cv0421 CAB (JLB)