Opinion
Case No. 1:15-cv-01218-AWI-GSA-HC
08-11-2015
ERMILIO RODRIGUEZ MORALES, Petitioner, v. K. HOLLAND, Warden, Respondent.
ORDER DIRECTING PETITIONER TO FILE A STATEMENT SIGNED UNDER PENALTY OF PERJURY THAT HE SUBMITTED THE INSTANT PETITION FINDINGS AND RECOMMENDATION REGARDING PETITION
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On July 6, 2015, Petitioner filed a petition for writ of habeas corpus in this Court. This petition has been assigned case number 1:15-cv-01013-JLT-HC. On July 9, 2015, Petitioner was ordered to file a motion to amend the petition to name a proper respondent within thirty (30) days. On August 6, 2015, Petitioner filed a duplicate of the first federal petition for writ of habeas corpus in this Court, except this Petition listed the Warden as K. Holland. This petition has been assigned case number 1:15-cv-01218-AWI-GSA HC.
DISCUSSION
A plaintiff is required to bring at one time all of the claims against a party or privies relating to the same transaction or event. Adams v. California Dept. of Health Services, 487 F.3d 684, 693 (9th Cir. 2007). "After weighing the equities of the case, the district court may exercise its discretion to dismiss a duplicative later-filed action, to stay that action pending resolution of the previously filed action, to enjoin the parties from proceeding with it, or to consolidate both actions." Adams, 487 F.3d at 688. "Plaintiffs generally have 'no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.'" Adams, 487 F.3d at 688 (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977) (en banc)).
Normally, "where a new pro se petition is filed before the adjudication of a prior petition is complete, the new petition should be construed as a motion to amend the pending petition rather than as a successive application." Woods v. Carey, 525 F.3d 886, 888-890 (9th Cir. 2008). But where the claims have already be denied in the previously-filed action, the new petition is construed as a second or successive petition under 28 U.S.C. § 2244(b). Beaty v. Schriro, 554 F.3d 780, 782-83 (9th Cir. 2009).
In this case, the petition filed in Case No. 1:15-cv-01013-JLT-HC had not been adjudicated when Petitioner commenced his second action. Therefore, the Court must consider the petition filed in Case No. 1:15-cv01218-AWI-GSA-HC as a motion to amend the previously-filed petition.
Upon review of the petition, the Court discovered that the petition does not contain an original signature. Rule 11 of the Federal Rules of Civil Procedure and Rule 131 of the Local Rules of Practice for the United States District Court, Eastern District of California, require a document submitted to the Court for filing to include an original signature. If Petitioner would like to proceed with this petition that the Court is construing as a motion to amend the pending petition in the first application, he is directed to submit a document stating that he submitted the instant motion to amend the pending petition and he must sign it under penalty of perjury.
ORDER
Accordingly, IT IS HEREBY ORDERED that Petitioner is DIRECTED to file a statement signed under penalty of perjury that he submitted the instant petition within fourteen (14) days of the date of service of this Order.
RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that:
1. The Clerk of Court be DIRECTED to FILE the Petition (ECF No. 1) from Case No. 1:15-cv-01218-AWI-GSA-HC in Case No. 1:15-cv-01013-JLT-HC as a Motion to Amend; and
2. The Clerk of Court be DIRECTED to ADMINISTRATIVELY CLOSE Case No. 1:15-cv-01218-AWI-GSA-HC.
This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fourteen (14) days after being served with a copy, Petitioner may file written objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: August 11 , 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE