1 2 3 4 5 , 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 || DARRYL DUNSMORE, Case No.: 3:21-cv-02025-JO-KSC Petitioner, 10 etitioner. ORDER: 11 || V- 1 (1) GRANTING MOTION TO 12 || GENA JONES, et al.’, PROCEED IN FORMA PAUPERIS 13 Respondents. [ECF No. 10]; (2) GRANTING MOTION TO 15 AMEND PETITION [ECF No. 11] 16 (3) DENYING MOTION FOR 17 ORDER [ECF No. 9} 18 19 Introduction 20 On December 1, 2021, Petitioner, a state prisoner proceeding pro se, filed a □□□□□□□□ 21 || for writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking to challenge his □□□□□□□□□□ 22 San Diego Superior Court case no. SCS21653 which was given case no. 3:21-cv-02025 23 24 25 ||’ The Court takes judicial notice that Robert Burton is no longer the Warden at California Health Car Facility where Petitioner is housed. See Romero v. Securus Technologies, Inc.,216 F. Supp. 3d 1078, 108. 26 || fn. 1 (“Under [Federal Rule of Evidence 201], the court can take judicial notice of ‘public records an government documents available from reliable sources on the Internet, such as websites run b 27 governmental agencies.’”) The Court therefore sua sponte substitutes Gena Jones, Acting Warden at th 28 California Health Care Facility, as Respondent in place of “Robert Burton.” Se. https://www.cdcr.ca.gov/facility-locator/chcf/ (last visited 5/17/22).
1 || JO-KSC. (See ECF No. 1.) The Court dismissed the petition in this case without prejudice 2 |}on February 15, 2022 because Petitioner had failed to either pay the $5.00 filing fee or 3 ||move to proceed in forma pauperis and because Petitioner had failed to allege exhaustion 4 |/as to all claims in the petition. (See ECF No. 4.) Petitioner was told he had until March 18, 5 to either pay the $5.00 filing fee or submit adequate proof of his inability to pay the 6 || fee and to choose one of the options outlined by the Court in its Order. (/d.) 7 On February 28, 2022, Petitioner filed an Amended Petition and a motion to proceed 8 |/in forma pauperis in this case. (See ECF Nos. 5—6.) On March 16, 2022, the Court denied 9 || Petitioner’s motion to proceed in forma pauperis in this case because Petitioner had failed 10 || to provide the Court with adequate proof of his inability to pay the filing fee. (See ECF No. 11 || 7.) Petitioner was given until April 19, 2022 to either pay the $5.00 filing fee or submit a 12 || trust account statement establishing his inability to pay the fee. (/d.) 13 Petitioner filed a Second Amended Petition in this case on March 24, 2022. (See 14 ||ECF No. 8.) He subsequently filed a document entitled “Motion for Continuance and Order 15 || Directing CDCR California Healthcare Facility to Perform its Administrative Duties to 16 |iComplete Certified Trust Account Statement and Prison Certificate and Forward to the 17 || Above Court” in this case on April 15, 2022. (See ECF No. 9.) Then, on April 25, 2022, he 18 || filed a motion to proceed in forma pauperis which included a trust account statement. (See 19 || ECF No. 10.) 20 While this case was proceeding, Petitioner filed another petition for writ of habeas 21 ||corpus pursuant to 28 U.S.C. § 2254 in this Court challenging the same conviction as he 22 || does in this case on December 21, 2022. That case was given case number 3:21-cv-02125- 23 || CAB-RBB. (See Dunsmore v. Burton, S.D. Cal. case no. 3:21-cv-02125-CAB-RBB, ECF 24 || No. 1.) He filed an Amended Petition in case no 3:21-cv-02125-CAB-RBB on March 24, 25 ||2022. (See case no. 3:21-cv-02125-CAB-RBB, ECF No. 5.) Then, on May 2, 2022, the 26 || Amended Petition in case no. 3:21-cv-02125-CAB-RBB was filed as a motion to amend 27 || Petitioner’s petition in this case (ECF No. 11) pursuant to Woods v. Carey, 525 F.3d 886, 28 (9th Cir 2008) (stating that when a pro se petitioner has a 28 U.S.C. § 2254 petition
1 || pending in a district court and files a new 28 U.S.C. § 2254 petition challenging the sam« 2 || conviction, “the district court should . . . construe [a] pro se habeas petition as a motion t 3 ||amend his pending habeas petition”). 4 Motion to Proceed in Forma Pauperis 5 Petitioner has submitted a request to proceed in forma pauperis together with ; 6 || Prison Certificate certifying that he has $0.01 on account at the correctional institution a 7 || which he is presently confined. (ECF No. 10 at 4.) Petitioner cannot afford the $5.00 filing 8 || fee. Thus, the Court GRANTS Petitioner’s application to proceed in forma pauperis, an 9 || allows Petitioner to prosecute the above-referenced action without being required to prepa’ 10 || fees or costs and without being required to post security. The Clerk of the Court shall fil 11 Petition for Writ of Habeas Corpus without prepayment of the filing fee. 12 ||TII. Motion to Amend [ECF No. 10] 13 Petitioner has filed a Motion to Amend his petition in this case with the fou 14 || additional claims contained in the petition he filed in case no. 3:21-cv-02125-CAB-RBB 15 ||(1) excessive confinement; (2) equal protection; (3) deliberate indifference/cruel ans 16 |} unusual punishment; and (4) double jeopardy. (Mot. to Amend, ECF No. 5 at 6-9.) Motion 17 ||to amend a petition for writ of habeas corpus are governed by Federal Rule of Civi 18 Procedure 1 5(a). In re Morris, 363 F.3d 891, 893 (9th Cir. 2004); 28 U.S.C. § 2242 (statin; 19 a petition for writ of habeas corpus “may be amended or supplemented as provided 11 20 ||the rules of procedure applicable to civil actions”). Rule 15(a) states, in pertinent part: A party may amend its pleading once as a matter of course within: (A) 21 days 22 after serving it, or (B) if the pleading is one to which a responsive pleading is 73 required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
25 ||Fed. R. Civ. Pro., Rule 15(a) (2022). 26 The petition in this case has not been served and a responsive pleading not yet bee: 27 || filed. Accordingly, Petitioner may amend his petition as a matter of right under Rule 15(a 28 Petitioner’s motion to amend is therefore GRANTED. Petitioner is directed to file a Thir
1 || Amended Petition which contains both the claims he sought to bring in case no. 3:21-cv- 2 ||02125-CAB-RBB and the claims he seeks to bring in this case on or before August 10, 3 ||2022. Motion for Order Directing CDCR to Provide Trust Account Statement and 5 Prison Certificate [ECF No. 9] 6 In his Motion for Order Directing CDCR to Provide a Trust Account Statement and 7 {| prison certificate, Petitioner asks this Court for an Order directing prison officials at the 8 || California Health Care Facility where he is confined to provide the Court with a trust 9 || account statement and prison certificate to establish his inability to pay the $5.00 filing fee 10 this case. Because Petitioner provided the Court with a prison certificate as part of the 11 recent Motion to Proceed in Forma Pauperis, the Court DENIES the motion as moot. 12 Conclusion 13 For the foregoing reasons, the Court: 14 (1) GRANTS Petitioner’s Motion to Proceed in Forma Pauperis [ECF No. 10]; 15 (2) GRANTS Petitioner’s Motion to Amend his Petition [ECF No.
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1 2 3 4 5 , 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 || DARRYL DUNSMORE, Case No.: 3:21-cv-02025-JO-KSC Petitioner, 10 etitioner. ORDER: 11 || V- 1 (1) GRANTING MOTION TO 12 || GENA JONES, et al.’, PROCEED IN FORMA PAUPERIS 13 Respondents. [ECF No. 10]; (2) GRANTING MOTION TO 15 AMEND PETITION [ECF No. 11] 16 (3) DENYING MOTION FOR 17 ORDER [ECF No. 9} 18 19 Introduction 20 On December 1, 2021, Petitioner, a state prisoner proceeding pro se, filed a □□□□□□□□ 21 || for writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking to challenge his □□□□□□□□□□ 22 San Diego Superior Court case no. SCS21653 which was given case no. 3:21-cv-02025 23 24 25 ||’ The Court takes judicial notice that Robert Burton is no longer the Warden at California Health Car Facility where Petitioner is housed. See Romero v. Securus Technologies, Inc.,216 F. Supp. 3d 1078, 108. 26 || fn. 1 (“Under [Federal Rule of Evidence 201], the court can take judicial notice of ‘public records an government documents available from reliable sources on the Internet, such as websites run b 27 governmental agencies.’”) The Court therefore sua sponte substitutes Gena Jones, Acting Warden at th 28 California Health Care Facility, as Respondent in place of “Robert Burton.” Se. https://www.cdcr.ca.gov/facility-locator/chcf/ (last visited 5/17/22).
1 || JO-KSC. (See ECF No. 1.) The Court dismissed the petition in this case without prejudice 2 |}on February 15, 2022 because Petitioner had failed to either pay the $5.00 filing fee or 3 ||move to proceed in forma pauperis and because Petitioner had failed to allege exhaustion 4 |/as to all claims in the petition. (See ECF No. 4.) Petitioner was told he had until March 18, 5 to either pay the $5.00 filing fee or submit adequate proof of his inability to pay the 6 || fee and to choose one of the options outlined by the Court in its Order. (/d.) 7 On February 28, 2022, Petitioner filed an Amended Petition and a motion to proceed 8 |/in forma pauperis in this case. (See ECF Nos. 5—6.) On March 16, 2022, the Court denied 9 || Petitioner’s motion to proceed in forma pauperis in this case because Petitioner had failed 10 || to provide the Court with adequate proof of his inability to pay the filing fee. (See ECF No. 11 || 7.) Petitioner was given until April 19, 2022 to either pay the $5.00 filing fee or submit a 12 || trust account statement establishing his inability to pay the fee. (/d.) 13 Petitioner filed a Second Amended Petition in this case on March 24, 2022. (See 14 ||ECF No. 8.) He subsequently filed a document entitled “Motion for Continuance and Order 15 || Directing CDCR California Healthcare Facility to Perform its Administrative Duties to 16 |iComplete Certified Trust Account Statement and Prison Certificate and Forward to the 17 || Above Court” in this case on April 15, 2022. (See ECF No. 9.) Then, on April 25, 2022, he 18 || filed a motion to proceed in forma pauperis which included a trust account statement. (See 19 || ECF No. 10.) 20 While this case was proceeding, Petitioner filed another petition for writ of habeas 21 ||corpus pursuant to 28 U.S.C. § 2254 in this Court challenging the same conviction as he 22 || does in this case on December 21, 2022. That case was given case number 3:21-cv-02125- 23 || CAB-RBB. (See Dunsmore v. Burton, S.D. Cal. case no. 3:21-cv-02125-CAB-RBB, ECF 24 || No. 1.) He filed an Amended Petition in case no 3:21-cv-02125-CAB-RBB on March 24, 25 ||2022. (See case no. 3:21-cv-02125-CAB-RBB, ECF No. 5.) Then, on May 2, 2022, the 26 || Amended Petition in case no. 3:21-cv-02125-CAB-RBB was filed as a motion to amend 27 || Petitioner’s petition in this case (ECF No. 11) pursuant to Woods v. Carey, 525 F.3d 886, 28 (9th Cir 2008) (stating that when a pro se petitioner has a 28 U.S.C. § 2254 petition
1 || pending in a district court and files a new 28 U.S.C. § 2254 petition challenging the sam« 2 || conviction, “the district court should . . . construe [a] pro se habeas petition as a motion t 3 ||amend his pending habeas petition”). 4 Motion to Proceed in Forma Pauperis 5 Petitioner has submitted a request to proceed in forma pauperis together with ; 6 || Prison Certificate certifying that he has $0.01 on account at the correctional institution a 7 || which he is presently confined. (ECF No. 10 at 4.) Petitioner cannot afford the $5.00 filing 8 || fee. Thus, the Court GRANTS Petitioner’s application to proceed in forma pauperis, an 9 || allows Petitioner to prosecute the above-referenced action without being required to prepa’ 10 || fees or costs and without being required to post security. The Clerk of the Court shall fil 11 Petition for Writ of Habeas Corpus without prepayment of the filing fee. 12 ||TII. Motion to Amend [ECF No. 10] 13 Petitioner has filed a Motion to Amend his petition in this case with the fou 14 || additional claims contained in the petition he filed in case no. 3:21-cv-02125-CAB-RBB 15 ||(1) excessive confinement; (2) equal protection; (3) deliberate indifference/cruel ans 16 |} unusual punishment; and (4) double jeopardy. (Mot. to Amend, ECF No. 5 at 6-9.) Motion 17 ||to amend a petition for writ of habeas corpus are governed by Federal Rule of Civi 18 Procedure 1 5(a). In re Morris, 363 F.3d 891, 893 (9th Cir. 2004); 28 U.S.C. § 2242 (statin; 19 a petition for writ of habeas corpus “may be amended or supplemented as provided 11 20 ||the rules of procedure applicable to civil actions”). Rule 15(a) states, in pertinent part: A party may amend its pleading once as a matter of course within: (A) 21 days 22 after serving it, or (B) if the pleading is one to which a responsive pleading is 73 required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
25 ||Fed. R. Civ. Pro., Rule 15(a) (2022). 26 The petition in this case has not been served and a responsive pleading not yet bee: 27 || filed. Accordingly, Petitioner may amend his petition as a matter of right under Rule 15(a 28 Petitioner’s motion to amend is therefore GRANTED. Petitioner is directed to file a Thir
1 || Amended Petition which contains both the claims he sought to bring in case no. 3:21-cv- 2 ||02125-CAB-RBB and the claims he seeks to bring in this case on or before August 10, 3 ||2022. Motion for Order Directing CDCR to Provide Trust Account Statement and 5 Prison Certificate [ECF No. 9] 6 In his Motion for Order Directing CDCR to Provide a Trust Account Statement and 7 {| prison certificate, Petitioner asks this Court for an Order directing prison officials at the 8 || California Health Care Facility where he is confined to provide the Court with a trust 9 || account statement and prison certificate to establish his inability to pay the $5.00 filing fee 10 this case. Because Petitioner provided the Court with a prison certificate as part of the 11 recent Motion to Proceed in Forma Pauperis, the Court DENIES the motion as moot. 12 Conclusion 13 For the foregoing reasons, the Court: 14 (1) GRANTS Petitioner’s Motion to Proceed in Forma Pauperis [ECF No. 10]; 15 (2) GRANTS Petitioner’s Motion to Amend his Petition [ECF No. 11] and 16 || DIRECTS him to file a Third Amended Petition which contains both the claims he sought 17 bring in case no. 3:21-cv-02125-CAB-RBB and the claims he seeks to bring in this case 18 |jon or before August 10, 2022.; and 19 (3) DENIES Petitioner’s Motion for Order Directing CDCR to Provide Trust 20 || Account Statement and Prison Certificate [ECF No. 9] as moot. 21 IT IS SO ORDERED. - 22 ||DATED: _‘ tf } 12. 73 a . Jinsook Ohta . United States District Judge 24 25 26 27 28