1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 JOSHUA SPENCER HILL, 4 Case No. 20-cv-04026-YGR (PR) Petitioner, 5 ORDER OF DISMISSAL WITH LEAVE v. TO AMEND 6 SUMER BROOKS, 7 Respondent. 8

9 I. INTRODUCTION 10 This action was reassigned from a magistrate judge to the undersigned in light of a recent 11 Ninth Circuit decision.1 Petitioner, a state prisoner proceeding pro se, filed an incomplete habeas 12 corpus petition form. See Dkt. 1. His petition is now before the Court for review pursuant to 28

and Rule 4 of the Rules Governing Section 2254 Cases. 14 Petitioner has also filed a motion for leave to proceed in forma pauperis (“IFP”), which is 15 GRANTED. Dkt. 5. 16 II. DISCUSSION 17 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 18 custody pursuant to the judgment of a State court only on the ground that he is in custody in 19 violation of the Constitution or laws or treaties of the United States.”

(a). A 20 district court considering an application for a writ of habeas corpus shall “award the writ or issue 21 an order directing the respondent to show cause why the writ should not be granted, unless it 22 appears from the application that the applicant or person detained is not entitled thereto.” 28

. 24 Here, it is unclear exactly what Petitioner is challenging. As mentioned, the petition is 25 incomplete. Petitioner states under his “concerns” that he is challenging a “Sexual Assault . . . 26

27 1 Williams v. King,

(9th Cir. 2017) (magistrate judge lacked jurisdiction 1 Sexual Harassment & Rape on Gabrielle Sierra Hill.” Dkt. 1 at 2. Petitioner indicates that he is in 2 custody due to a “civil commitment,” and he lists “Use of Force with a Deadly Weapon” under the 3 “reason for civil commitment.”

Petitioner’s “grounds for relief” is difficult to decipher due to 4 his poor penmanship. Id. at 3. It seems that Petitioner is attempting to raise a challenge to the 5 aforementioned sexual assault case based on the following statements: “Sumer Brooks has been 6 useing [sic] false aligations [sic] . . . . Youngest daughter Gabrielle Sierra Hill was molested . . . 7 Sumer Brooks’ second father of her son. I was in prison during this situation.” Id. Again, 8 Petitioner’s handwriting is difficult to understand, and most of his claims are undecipherable. Id. 9 Under “supporting facts,” the Court has been able to decipher that Petitioner claims to be “bipolar” 10 and that he was “diagnosed” as such. Id. It is unclear whether Petitioner is also trying to allege 11 claims dealing with his conditions of his confinement. As such, the Court cannot fairly evaluate 12 the petition in its present state, nor can the court be certain that Petitioner intended to file a 28

petition at all. 14 The Court will dismiss the petition with leave to amend in order to allow Petitioner an 15 opportunity to file either a proper

petition on the enclosed habeas form or a 16 proper

complaint on the enclosed civil rights form, as further explained below. 17 A. Habeas Petition 18 If Petitioner chooses to file a

petition, he must clearly state his grounds 19 for relief and whether he is challenging his criminal conviction or the execution of his sentence. 20 He must also set out how he has exhausted his claims; that is, the specific actions he undertook to 21 present his claims to the highest state court available (i.e., the Supreme Court of California). 22 In addition, Petitioner has not named a proper respondent in his habeas petition. He has 23 named a private individual named “Sumer Brooks.” Dkt. 1 at 1. The rules governing relief under 24

require a person in custody pursuant to the judgment of a state court to name the 25 “‘state officer having custody’” of him as the respondent. Ortiz-Sandoval v. Gomez,

, 26 894 (9th Cir. 1996) (quoting Rule 2(a) of the Rules Governing Habeas Corpus Cases Under 27 1 Section § 2254). Failure to name the petitioner’s custodian as a respondent deprives federal courts 2 of personal jurisdiction. See Stanley v. California Supreme Court,

(9th Cir. 3 1994). Petitioner must identify a proper respondent for his amended petition. 4 B. Civil Rights Complaint 5 1. Identifying Defendants 6 Should Petitioner instead choose to file a

civil rights complaint, he must 7 name as defendants each person who caused a violation of his constitutional rights and explain 8 what each person did to cause the violation. Liability under section 1983 arises only upon a 9 showing of personal participation by the defendant. See Taylor v. List,

(9th 10 Cir. 1989). There is no respondeat superior liability under section 1983, i.e., no liability under the 11 theory that a supervisor is responsible for the actions or omissions of his or her subordinate. See 12 Leer v. Murphy,

(9th Cir. 1988) (liability may be imposed on individual 13 defendant under section 1983 only if plaintiff can show that defendant proximately caused 14 deprivation of federally protected right). 15 2. Exhaustion of Remedies 16 Before filing a civil rights complaint, Petitioner must ensure that he has exhausted all of 17 his administrative remedies. The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 18 U.S.C. § 1997e to provide that “[n]o action shall be brought with respect to prison conditions 19 under [

], or any other Federal law, by a prisoner confined in any jail, prison, or 20 other correctional facility until such administrative remedies as are available are exhausted.” 42 21 U.S.C. § 1997e(a). Although once within the discretion of the district court, exhaustion in 22 prisoner cases covered by 1997e(a) is now mandatory. Porter v. Nussle,

, 524 23 (2002). All available remedies must now be exhausted; those remedies “need not meet federal 24 standards, nor must they be ‘plain, speedy, and effective.’”

(citation omitted). Even when the 25 prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion 26 is a prerequisite to suit. Id.; Booth v. Churner,

(2001). Similarly, exhaustion is 27 1 a prerequisite to all prisoner suits about prison life, whether they involve general circumstances or 2 particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 3 U.S. at 532. The PLRA’s exhaustion requirement requires “proper exhaustion” of available 4 administrative remedies. Woodford v. Ngo,

(2006). The State of California 5 provides its prisoners the right to appeal administratively “any departmental decision, action, 6 condition or policy perceived by those individuals as adversely affecting their welfare.” Cal. Code 7 Regs. tit. 15, § 3084.1(a). 8 3. Filing Fee 9 The filing fee for a civil rights action is $400.00. However, Petitioner originally filed this 10 case as a habeas corpus action with a $5.00 filing fee. His pending IFP application is being 11 granted because this Court is dismissing his petition with leave to amend. Should Petitioner 12 choose to pursue this action as a civil rights case, then the Court will revoke its Order granting 13 Petitioner’s IFP application and deny said application without prejudice to (1) paying the full 14 $400.00 filing fee, or (2) filing another IFP application because Petitioner is a prisoner who 15 alleges that he is unable to pay the full filing fee at the time of filing. (The filing fee will then only 16 be $350.00 because the $50.00 administrative fee is waived for prisoners who are granted IFP 17 status.) 18 In support of his IFP application, Petitioner must submit: (1) an affidavit that includes a 19 statement of all assets he possesses, and (2) a certified copy of the trust fund account statement for 20 the prisoner for the six-month period immediately preceding the filing of the action, obtained from 21 the appropriate official of each prison at which the prisoner is or was confined. See 28 U.S.C. 22 § 1915(a)(1), (2). Under the IFP statute, if the district court determines that the prisoner is unable 23 to pay the full filing fee at the time of filing, the prisoner will be granted leave to proceed IFP. 24 This means that the filing fee must be paid by way of an installment plan, according to which the 25 court first will assess and collect a partial filing fee from the prisoner, and then the prisoner will be 26 required to make monthly payments of twenty percent of the preceding month’s income credited 27 1 to the prisoner’s account until the full $350.00 filing fee is paid. Id. § 1915(b)(1). The agency 2 having custody of the prisoner is responsible for forwarding to the court payments from the 3 prisoner’s account each time the amount in the account exceeds ten dollars. See id. Accordingly, 4 before this action may proceed as a civil rights action, Petitioner must pay the full filing fee, or file 5 another application for leave to proceed IFP with the aforementioned supporting documents, as 6 directed below. 7 III. CONCLUSION 8 For the reasons outlined above, the Court orders as follows: 9 1. Petitioner’s motion for leave to proceed IFP is GRANTED. Dkt. 5. 10 2. The petition is DISMISSED with leave to amend within twenty-eight (28) days 11 from the filing date of this Order. Petitioner shall file either a civil rights complaint on the 12 enclosed complaint form or an amended petition on the enclosed habeas form. Failure to do so 13 within the twenty-eight-day deadline shall result in dismissal of this action without 14 prejudice. 15 3. Petitioner must write the case number for this action—Case No. 20-cv-04026-YGR 16 (PR)—on the form and complete all sections of the form. He must clearly state his grounds for 17 relief and whether he is challenging his criminal conviction and sentence, the conditions of his 18 confinement, or the execution of his sentence. Petitioner shall take care to write clearly and 19 legibly, so that the Court can read what he writes. 20 If Petitioner chooses to file an amended petition, he must complete the Court’s habeas 21 form, and it must include the words “AMENDED PETITION” on the first page. Petitioner must 22 also identify a proper respondent for his amended petition. The amended petition shall be on the 23 Court’s form for habeas petitions, a copy of which is enclosed with Petitioner’s copy of this Order. 24 If Petitioner chooses to file a civil rights action, he must complete the Court’s civil rights 25 complaint form, a copy of which is enclosed with his copy of this Order. Furthermore, Petitioner 26 must pay the requisite $400.00 filing fee in this action no later than twenty-eight (28) days from 27 the date of this Order. He shall include with his payment a clear indication that it is for the above- referenced case number, Case No. 20-cv-04026-YGR (PR). In the event that Petitioner is unable ° to pay the filing fee, he shall submit an IFP application, trust account statement and certificate of funds no later than twenty-eight (28) days from the date of this Order. Failure to pay the filing ° fee or file the requisite documents (along with his completed civil rights complaint form) ° within the twenty-eight-day deadline shall result in dismissal of this action without ’ prejudice. ° 4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the Court ° informed of any change of address and must comply with the Court’s Orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 5. The Clerk of the Court shall send Petitioner a blank civil rights complaint form, a blank habeas corpus petition form, and a blank prisoner IFP application form along with his copy of tnis Order

IT IS SO ORDERED. Q 16 Dated: January 13, 2021 17 fo YVONNE SLA = ROehns ited States District Judge Z 18 19 20 21 22 23 24 25 26 27 28