Pope v. Haynes

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 Eton Marcel Pope, CASE NO. 2:21-cv-00265-RAJ-DWC 11 Petitioner, ORDER 12 v.

13 Ron Haynes, 14 Respondent.

15 16 The District Court has referred this action filed under 42 U.S.C. § 1983 to United States 17 Magistrate Judge David W. Christel. Before the Court is Petitioner’s Motion to Amend 18 (“Motion”). Dkt. 8. Also pending are: (1) Respondent’s Answer (Dkt. 11, 12); (2) Petitioner’s 19 Amended Motion for Expansion of the Record (“Motion to Expand,” Dkt. 13); and (3) 20 Petitioner’s Motion for Relief from a Deadline under LCR 7(D) (“Motion for Extension,” Dkt. 21 14). 22 On March 23, 2021, Petitioner filed the Motion to Amend seeking leave to amend his 23 original Petition. Dkt. 8. On March 31, 2021, before the Court ruled on the Motion to Amend, 24 Petitioner filed the Amended Petition. Dkt. 9. On April 23, 2021, Respondent filed his Answer to 1 the original Petition and Amended Petition. Dkt. 11, 12. On April 28, 2021, Petitioner filed the 2 Motion to Expand, seeking to expand the record to include all exhibits and affidavits attached to 3 his “petition and memorandum brief[.]”Dkt. 13. It is not clear which “petition” he is referring to, 4 or what exhibits and affidavits he would like to attach. See id. On May 4, 2021, Petitioner filed

5 the Motion for Extension, seeking a 45-day extension to file his Traverse in response to 6 Respondent’s Answer.1 Dkt. 14. 7 A habeas petitioner’s opportunity to amend as a matter of course, without permission of 8 the Court, exists within 21 days of when the responsive pleading is served. Fed. R. Civ. P. 15(a) 9 (“A party may amend its pleading once as a matter of course within … 21 days after service of a 10 responsive pleading.”); Mayle v. Felix, 545 U.S. 644, 665-66 (2005). After one amendment, or 11 after the government files an answer or other response, a petitioner may not amend without the 12 court's leave or the respondent’s consent. Id. Petitioner’s Motion to Amend was filed within 21 13 days of the service of the original Petition and before Respondent filed his Answer. Dkt. 3, 8, 11, 14 12. Thus, Petitioner may amend as a matter of course.

15 However, after considering the pending Original Petition, Motion to Amend, Amended 16 Petition, and Motion to Expand, it is not clear to the Court what claims Petitioner seeks to raise. 17 Rather, it appears Petitioner seeks permission to supplement and add additional grounds to his 18 original Petition. Dkt. 8, 9, 13. For example, his original Petition raised eight grounds for relief, 19 but his Amended Petition only raises three grounds for relief. Compare Dkt. 3 with Dkt. 9.2 In 20 addition, Petitioner’s Motion to Expand requests that the Court consider all of the exhibits and 21 attachments to his “petition,” but is not clear which petition he is referring to. Dkt. 13. 22

23 1 The Motion for Extension was entered into the docket by the Clerk’s Office on May 7, 2021. See Dkt. 14. 24 2 The Motion to Amend appears to raise only two claims for relief. See Dkt. 8. 1 Accordingly, in order to ensure the record is complete and Petitioner has had the 2 opportunity to clearly set forth all of his claims, the Court orders Petitioner to file second 3 amended petition on or before June 25, 2021. 4 Petitioner is advised he must file a second amended petition, and not a supplement to the

5 original Petition or Amended Petition. The second amended petition must comply with Rule 2 of 6 the Rules Governing Section 2254 Cases and be filed on the form provided by the Court. The 7 second amended petition must provide all the information required therein and the second 8 amended petition may not incorporate any part of the original Petition or Amended Petition by 9 reference. The second amended petition must also be legibly rewritten or retyped in its entirety, it 10 should be an original and not a copy, and it should contain the same case number. The second 11 amended petition will act as a complete substitute for the original Petition and Amended Petition, 12 and not as a supplement. Reference to a prior pleading or another document is unacceptable – 13 once Petitioner files a second amended petition, the original Petition and Amended Petition will 14 no longer serve any function in this case. Petitioner must file a new and complete second

15 amended petition on the Court-approved form which includes all arguments he wishes to 16 consider. Petitioner should title this document “Second Amended Petition.” If Petitioner fails to 17 file a second amended petition on or before June 25, 2021, the Court may dismiss this action 18 without prejudice for failure to prosecute and failure to comply with a Court order. 19 Therefore, the Motion to Amend (Dkt. 8) is granted as a matter of course. The Motion to 20 Expand (Dkt. 13) and Motion for Extension (Dkt. 14) denied without prejudice as premature 21 based on the filing of a second amended petition. However, the Court affords Petitioner 45 days 22 to file his second amended petition. 23

24 1 The Clerk is directed to enter a deadline of June 25, 2021 to file the second amended 2 petition and terminate the pending deadline related to the original Petition, Amended Petition, and 3 Response (Dkt. 3, 9, 11, 12). After a review of the second amended petition, the Court will 4 determine whether it is necessary for Respondent to file a supplemental or amended answer, and

5 the Court will set a new noting date. The Clerk is further directed to provide Petitioner with the 6 forms for filing a Petition for Habeas Corpus relief pursuant to 28 U.S.C. § 2254. 7 8 Dated this 10th day of May, 2021. 9 A 10 David W. Christel 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24