Mosqueda v. Jaquez et al, No. 4:2010cv00595 - Document 8 (N.D. Cal. 2011)
Court Description: ORDER GRANTING 7 MOTION FOR RECONSIDERATION; VACATING JULY 30, 2010 DISMISSAL; REOPENING CASE; DENYING LEAVE TO FILE AMENDED DUE PROCESS CLAIM; AND GRANTING EXTENSION TO FILE CLAIMS IN CIVIL RIGHTS COMPLAINT AND TO COMPLETE NEW IFP APPLICATION by Judge Claudia Wilken.(ndr, COURT STAFF) (Filed on 3/29/2011)
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Mosqueda v. Jaquez et al Doc. 8 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 ADRIAN T. MOSQUEDA, 4 Petitioner, 5 v. 6 7 FRANCISCO JAQUEZ, Warden, et al., Respondents. 8 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 ORDER GRANTING MOTION FOR RECONSIDERATION; VACATING JULY 30, 2010 DISMISSAL; REOPENING CASE; DENYING LEAVE TO FILE AMENDED DUE PROCESS CLAIM; AND GRANTING EXTENSION TO FILE CLAIMS IN CIVIL RIGHTS COMPLAINT AND TO COMPLETE NEW IFP APPLICATION / (Docket no. 7) 9 10 No. C 10-0595 CW (PR) This case was commenced when Petitioner filed a document captioned "Petition For A Writ of Habeas Corpus," challenging his indeterminate placement in the Pelican Bay State Prison Security Housing Unit based on his validation as a gang member. On June 25, 2010, the Court issued an order of dismissal with leave to amend and gave Petitioner thirty days from the date of the Order to amend to allege a § 1983 action because his claims were not cognizable in federal habeas corpus. The Court stated that the failure to timely file a civil rights complaint would result in dismissal for failure to prosecute. In an Order dated July 30, 2010, the Court issued an Order of Dismissal stating: "The time for Petitioner to file his complaint has passed, and no complaint has been filed." at 1.) (July 30, 2010 Order Therefore, the Court dismissed this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Before the Court is Petitioner's motion for reconsideration under Rule 60(b) of the Federal Rules of Civil Procedure (docket no. 7). Also before the Court is his "Request [for] Leave to Amend Petitioner for Writ of Habeas Corpus to Include Additional Claim Dockets.Justia.com 1 Affecting Prison Sentence Duration" (docket no. 6) as well as his 2 amended pleading (docket no. 6-1). 3 For the reasons outlined below, the Court GRANTS Petitioner's 4 motion for reconsideration, vacates its July 30, 2010 Order of 5 Dismissal, and directs the Clerk of the Court to reopen this 6 action. 7 add a due process claim is DENIED. Petitioner's request for leave to amend his petition to 8 9 DISCUSSION I. Motion for Reconsideration United States District Court For the Northern District of California 10 Rule 60(b) provides for reconsideration only upon a showing 11 of: (1) mistake, inadvertence, surprise or excusable neglect; 12 (2) newly discovered evidence which by due diligence could not have 13 been discovered before the court's decision; (3) fraud by the 14 adverse party; (4) the judgment is void; (5) the judgment has been 15 satisfied; or (6) any other reason justifying relief. 16 Civ. P. 60(b). 17 See Fed. R. Here, Petitioner alleges that he submitted his amended 18 pleading and his "Request [for] leave to amend Petition for Writ of 19 Habeas Corpus to include additional claim affecting Prison sentence 20 duration" before the July 25, 2010 deadline. 21 submitted these documents "for photocopying and mailing on July 18, 22 2010 . . . . " 23 this, Petitioner has submitted a copy of his "Request for Legal 24 Photcopying Service," which shows that he submitted his 25 photocopying request on July 18, 2010. 26 "under the 'Mailbox Rule,' an inmate's legal documents are deemed 27 filed once these are turned over to prison officials for mailing." 28 (Id.) He claims he (Pet'r Mot. for Recons. at 2.) To substantiate Petitioner argues that These facts present adequate grounds for reconsideration. 2 1 The Court finds that Petitioner's amended pleading and motion to 2 amend are deemed filed on July 18, 2010, the date it was signed an 3 delivered to prison authorities for mailing. 4 Newland, 250 F.3d 1262, 1268 (9th Cir. 2001), vacated and remanded 5 on other grounds, Carey v. Saffold, 536 U.S. 214 (2002) (holding 6 that a federal or state habeas petition is deemed filed on the date 7 the prisoner submits it to prison authorities for filing, rather 8 than the date it is received by the courts). 9 Petitioner's motion for reconsideration (docket no. 7) is GRANTED, See Saffold v. Accordingly, United States District Court For the Northern District of California 10 the Court's July 30, 2010 Order of Dismissal is vacated, and the 11 Clerk shall reopen this action. 12 II. 13 Motion for Leave to Amend Petition Petitioner filed a motion to amend his petition to add a new 14 claim, specifically "a due process violation which directly affects 15 the duration of [his] prison sentence." 16 2.) 17 requests an extension of time to file his remaining claims in a 18 civil rights complaint and to complete a new in forma pauperis 19 (IFP) application. 20 (Mot. for Leave to Am. at In the alternative, if the Court denies his motion, Petitioner Habeas petitions may be amended or supplemented as provided in 21 the Federal Rules of Civil Procedure. 22 Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000). 23 Federal Rule of Civil Procedure 15(a) requires that leave to amend 24 "shall be freely given when justice so requires," the court may 25 consider whether there is any evidence of undue delay, bad faith or 26 dilatory motives with respect to the filing of an amendment when 27 determining whether leave to amend should be granted. 28 577-78. 3 See 28 U.S.C. § 2242; Although See id. at 1 Petitioner submitted his new claim in a document entitled, 2 "Amendment to Petition for Writ of Habeas Corpus to Include 3 Additional Claim Affecting Prison Sentence Duration." 4 alleges that he is challenging as a violation of his constitutional 5 rights the February 3, 2010 decision to deny him parole by the 6 California Board of Parole Hearings (Board). 7 provided an opportunity to be heard and a statement of reasons for 8 the denial pursuant to California Penal Code § 3041.5(a)(2). 9 (Attach. to Amendment, Ex. E-5.) Petitioner Petitioner was Specifically, he states, "Being United States District Court For the Northern District of California 10 that the board's decision denying Petitioner parole is predicated 11 on [his] faulty gang validation and S.H.U confinement, the Board 12 did not rely on 'some evidence' in denying Petitioner parole." 13 (Amendment at 3.) 14 under federal habeas review because the record shows that 15 Petitioner received adequate process at his 2010 parole suitability 16 hearing. 17 (2011) (a prisoner subject to California's parole statute receives 18 adequate process when he is allowed an opportunity to be heard and 19 is provided with a statement of the reasons why parole was denied). 20 Because Petitioner received adequate process at his 2010 parole 21 suitability hearing, then his alleged due process claim stemming 22 from the Board's 2010 denial is not cognizable on federal habeas 23 review. 24 However, no such due process claim is cognizable See Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 862 See Swarthout, 131 S. Ct. at 862. Accordingly, for the above reasons, the due process claim 25 raised in the amendment petition is not cognizable on federal 26 habeas corpus review. 27 motion for leave to amend his petition to add that due process 28 claim. Therefore, the Court DENIES Petitioner's His request for an extension of time to file his remaining 4 1 claims on a civil rights complaint form and to complete a new IFP 2 application is GRANTED, as directed below. 3 4 CONCLUSION For the foregoing reasons, the Court GRANTS Petitioner's 5 motion for reconsideration (docket no. 7). 6 to vacate the Court's July 30, 2010 Order of Dismissal and to 7 REOPEN this action. 8 The Clerk is directed The Court DENIES Petitioner's motion for leave to amend to add a new claim (docket no. 6) because his due process claim relating 10 United States District Court For the Northern District of California 9 to the Board's 2010 parole denial is not appropriate for federal 11 habeas corpus review. 12 request for an extension of time to file his remaining claims in a 13 civil rights complaint and to complete a new IFP application. 14 However, the Court GRANTS Petitioner's Petitioner must file his complaint no later than thirty (30) 15 days from the date of this Order. 16 number for this action -- 17 form and complete all sections of the form. 18 particularly directed to name as defendants each person who caused 19 a violation of his constitutional rights and explain what each 20 person did to cause the violation. 21 only upon a showing of personal participation by the defendant. 22 See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 23 no respondeat superior liability under § 1983, i.e. no liability 24 under the theory that a supervisor is responsible for the actions 25 or omissions of his or her subordinate. 26 F.2d 628, 634 (9th Cir. 1988) (liability may be imposed on 27 individual defendant under § 1983 only if plaintiff can show that 28 defendant proximately caused deprivation of federally protected Petitioner must write the case Case No. C 10-00595 CW (PR) -- on the 5 Petitioner is Liability under § 1983 arises There is See Leer v. Murphy, 844 1 right). 2 Because Petitioner originally filed this case as a habeas 3 corpus action, his previously-filed IFP application was denied 4 without prejudice to filing a new application or paying the full 5 filing fee. 6 Court's June 25, 2010 Order, the filing fee for a civil rights 7 action is $350.00. 8 file an application for leave to proceed IFP, before this action 9 can proceed. (June 25, 2010 Order at 4.) As mentioned in the Petitioner must pay the $350.00 filing fee, or If Petitioner alleges that he is unable to pay the United States District Court For the Northern District of California 10 full filing fee at the time of filing, he must submit: (1) an 11 affidavit that includes a statement of all assets he possesses, and 12 (2) a certified copy of his trust fund account statement for the 13 six-month period immediately preceding the filing of the action, 14 obtained from the appropriate official of each prison at which the 15 prisoner is or was confined. 16 the district court determines that the prisoner is unable to pay 17 the full filing fee at the time of filing, the prisoner will be 18 granted leave to proceed IFP. 19 be paid by way of an installment plan, according to which the Court 20 first will assess and collect a partial filing fee from the 21 prisoner, and then the prisoner will be required to make monthly 22 payments of twenty percent of the preceding month's income credited 23 to the prisoner's account until the full $350.00 filing fee is 24 paid. 25 is responsible for forwarding to the Court payments from the 26 prisoner's account each time the amount in the account exceeds ten 27 dollars. 28 pay the requisite $350.00 filing fee in this action no later than Id. § 1915(b)(1). See id. See 28 U.S.C. § 1915(a)(1), (2). If This means that the filing fee must The agency having custody of the prisoner Accordingly, Petitioner is hereby ORDERED to 6 1 thirty (30) days from the date of this Order. 2 with his payment a clear indication that it is for the above- 3 referenced case number, Case No. C 10-00595 CW (PR). 4 that Petitioner is unable to pay the filing fee, he shall submit an 5 IFP application, trust account statement and certificate of funds 6 no later than thirty (30) days from the date of this Order. 7 He shall include In the event Failure to file a completed civil rights form and to pay the 8 filing fee or file the requisite documents within the thirty-day 9 deadline shall result in dismissal of this action without United States District Court For the Northern District of California 10 prejudice. 11 The Clerk of the Court shall send Petitioner a blank civil 12 rights form and the Court's prisoner IFP application form along 13 with his copy of this Order. 14 This Order terminates Docket nos. 6 and 7. 15 IT IS SO ORDERED. 16 Dated: 3/29/2011 17 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 7 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 1 2 3 ADRIAN T. MOSQUEDA, Case Number: CV10-00595 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 FRANCISCO JAQUEZ et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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 March 29, 2011, I SERVED a true and correct copy(ies) of the attached and a blank civil rights form and the Court's prisoner IFP application form, 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. 13 14 17 Adrian Tamayo Mosqueda E-08547 D7-109 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95531 18 Dated: March 29, 2011 15 16 19 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 8
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