(HC) Kindred v. Price

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RICHARD SCOTT KINDRED, Case No. 1:21-cv-00666-HBK

Petitioner, ORDER DIRECTING CLERK OF COURT TO FILE PETITION AS AMENDED PETITION v. IN Kindred v. Superior Ct. of CA Cty. Of Orange, Case No. 1:21-cv-00532-AWI-JLT BRANDON PRICE, (E.D. Cal. Mar. 31, 2021)

Respondent. (Doc. No. 1)

ORDER VACATING ORDER TO

RESPONDENT TO RESPOND TO PETITION (Doc. No. 4)

ORDER DIRECTING CLERK OF COURT TO ADMINISTRATIVELY CLOSE CASE

Petitioner Richard Scott Kindred, a state civil detainee, has pending a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1). On March 29, 2021, Petitioner filed a habeas petition in the U.S. District Court for the Central District of California. See Kindred v. Superior Ct. of CA Cty. Of Orange, No. 8:21-cv-00582-DSF-KES, Doc. No. 1, (C.D. Cal. Mar. 31, 2021). Finding venue proper in the Eastern District of California, the Central District transferred the action to this Court. See Kindred v. Superior Ct. of CA Cty. Of Orange, 1:21-cv- 00532-AWI-JLT (E.D. Cal. Mar. 31, 2021). On April 7, 2021, the magistrate judge assigned to the case, finding that Petitioner named an improper respondent, dismissed the petition but granted Petitioner leave to file an amended petition. (Id., Doc. No. 6). On April 21, 2021, Petitioner filed an amended petition, which was docketed as a new case in the above-captioned action. (Doc. No. 1).1 On April 22, 2021, the undersigned ordered Respondent to respond to the petition. (Doc. No. 4).

“Generally, a new petition is ‘second or successive’ if it raises claims that were or could have been adjudicated on their merits in an earlier petition.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (quotations and citation omitted). However, the Ninth Circuit has held that where a new habeas petition is filed while one is pending before the District Court, the new petition should be treated as a motion to amend the pending petition. Id. at 890. “The district court then has the discretion to decide whether the motion to amend should be granted.” Id. Here, in case no. 21-cv-00532, Petitioner was granted leave to amend his petition and he did so. The amended petition was inadvertently docketed in a new action at case no. 21-cv- 00666. Accordingly, the Court will order the instant petition to be filed in case no. 21-cv-00532 as an amended petition. Further, this Court’s order directing Respondent to respond in the action is vacated and the Clerk of Court is directed to administratively close this case.

Accordingly, it is ORDERED:

1. The Clerk of Court is ORDERED to file the instant petition (Doc. No. 1) as an “amended petition” in Kindred v. Superior Ct. of CA Cty. Of Orange, Case No. 1:21- cv-00532-AWI-JLT (E.D. Cal. Mar. 31, 2021).

2. This Court’s April 22, 2021 Order directing Respondent to respond to the petition (Doc. No. 4) is VACATED.

3. The Clerk of Court is ORDERED to administratively close this case.

The amended petition and the original petition are virtually similar except for the amended name of the Respondent.

ITIS SOORDERED.

Dated: _ June 9, 2021 Mine WN. BareA Yack HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE