Sells v. Godfrey et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION re: 10 Objections to Report and Recommendation filed by William Cato Sells, Jr, and granting 9 Motion for Leave to File filed by William Cato Sells, Jr. Petitioners application to proceed in forma pauperis (Dkt. 1) is DENIED, and this case is DISMISSED WITHOUT PREJUDICE. Signed by Judge Robert J. Bryan. (JL) Paper copy sent to plaintiff @ Walla Walla address . Modified on 10/24/2013 (JL).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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WILLIAM CATO SELLS, JR.,
Plaintiff,

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ORDER ADOPTING REPORT AND
RECOMMENDATION

v.

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CASE NO. 3:13-cv-05634-RJB

JUDGE GORDON L. GODFREY,
PROSECUTOR H. STEWART
MENEFEE,
Defendant.

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This matter comes before the Court on the Report and Recommendation of the Magistrate

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18 Judge. Dkt. 7. The court has considered the relevant documents and the remainder of the file
19 herein.
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On July 29, 2013, Petitioner William Cato Sells filed an application to proceed in forma

21 pauperis and a proposed “Petition for Writ of Mandamus.” Dkt. 1; Dkt. 1-1. Because Sells is a
22 prisoner claiming to be in custody in violation of the United States Constitution, his Petition was
23 properly treated as petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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ORDER ADOPTING REPORT AND
RECOMMENDATION- 1

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On August 1, 2013, the Court Clerk advised Sells that his filings were deficient because

2 they were not submitted on this Court’s forms. Dkt. 3. The Clerk provided Sells with the correct
3 forms for filing his 28 U.S.C. § 2254 petition and his application to proceed in forma pauperis.
4 Id. The Clerk further advised Sells that he must submit these forms by September 3, 2013, or else
5 his action may be subject to dismissal. Id. The Court later extended this deadline to September
6 20, 2013. Dkt. 6.
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On August 26, 2013, Sells appealed the Court’s “order . . . refusing to treat Petitioner’s

8 Petition for Writ of Mandamus as a civil proceeding, and to perform a clear nondiscretionary
9 duty.” Dkt. 4. The Ninth Circuit dismissed the appeal for lack of jurisdiction because the district
10 court had not issued any final or appealable orders. Dkt. 8.
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Because Sells did not file his petition and application on the appropriate forms by

12 September 20, 2013, Magistrate Judge Strombom issued a Report and Recommendation
13 recommending that his application be denied. Dkt. 7. The Magistrate Judge recommended that
14 the case be dismissed without prejudice. Id.
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On October 23, 2013, Sells requested leave to file his objections to the Magistrate Judge/s

16 Report and Recommendation because he was unable to mail his objections until two days after
17 the noting date. Dkt. 9. In the interest of fairness, Sells’ motion should be granted.
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In his objections, Sells argues that the Magristrate Judge’s denial constituted an abuse of

19 discretion. Dkt. 10, at1. Petitioner reemphasized his qualifications, and argued that the form he
20 used was provided by the Washington State Penitentiary law librarian. Id. at 1-2.
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The court has reviewed the record de novo. The court concurs with the Magistrate

22 Judge’s recommendation. The Magistrate Judge’s decision to deny Sells’ application did not
23 constitute an abuse of discretion. The Court properly treated his petition as a § 2254 petition for
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ORDER ADOPTING REPORT AND
RECOMMENDATION- 2

1 writ of habeas corpus. Moreover, Sells needed only to comply with the Court’s directives and
2 complete the provided forms to avoid dismissal. For the reasons provided in the Report and
3 Recommendation, Sells’ application to proceed in forma pauperis should be denied, and
4 Petitioner’s case should be dismissed without prejudice.
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IFP on Appeal. In the event that Petitioner appeals this order, and/or appeals dismissal

6 of this case, IFP status should be denied by this court, without prejudice to Petitioner to filing in
7 the Ninth Circuit U.S. Court of Appeals an application to proceed in forma pauperis.
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Therefore, it is hereby

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ORDERED that Petitioner’s motion for leave to file his objections (Dkt. 9) is

10 GRANTED; the Report and Recommendation (Dkt. 7) is ADOPTED; Petitioner’s application
11 to proceed in forma pauperis (Dkt. 1) is DENIED, and this case is DISMISSED WITHOUT
12 PREJUDICE. In the event that plaintiff appeals this order, IFP status is DENIED by this court,
13 without prejudice to Petitioner to filing in the Ninth Circuit U.S. Court of Appeals an application
14 to proceed in forma pauperis.
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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

16 to any party appearing pro se at said party’s last known address.
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Dated this 24th day of October, 2013.

A

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ROBERT J. BRYAN
United States District Judge

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ORDER ADOPTING REPORT AND
RECOMMENDATION- 3