Fritz v. Smith

Northern District of California, cand-4:2015-cv-03561

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Magistrate Judge Donna M. Ryu on 11/9/15.

Interested in this case?

Current View

Full Text

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 THOMAS FRITZ, 5 Case No. 15-cv-03561-DMR (PR) Petitioner, 6 ORDER OF DISMISSAL WITHOUT v. PREJUDICE 7 SHERIFF LAURIE SMITH, 8 Respondent. 9 10 On July 24, 2015, Petitioner, who is in custody at the Elmwood Correctional Facility and 11 proceeding pro se, filed a handwritten document entitled, "Writ of Habeas Corpus" with the court 12 in the instant case. The Clerk of the Court opened the case as a habeas corpus action, and it has Northern District of California United States District Court 13 been assigned to the undersigned Magistrate Judge. 14 On August 7, 2015, the Clerk sent a notice to Petitioner informing him that his action 15 could not go forward until he filed a fully completed petition on the proper habeas corpus petition 16 form. Petitioner was informed that he had to do so within twenty-eight days or his action would 17 be dismissed. The Clerk also sent Petitioner another notice directing him to either pay the filing 18 fee or file a completed prisoner's in forma pauperis ("IFP") application within twenty-eight days 19 or his action would be dismissed. The Clerk sent Petitioner a blank habeas corpus petition form as 20 well as a blank IFP application. 21 On August 11, 2015, Petitioner filed another handwritten document entitled, "Amended 22 Writ of Habeas Corpus." Dkt. 5. However, Petitioner submitted his amended petition on lined 23 paper instead of using the proper habeas corpus petition form. See id. Furthermore, Petitioner 24 neither paid the requisite filing fee nor submitted a completed IFP application. 25 On the same date, Petitioner consented to magistrate judge jurisdiction. Dkt. 6. 26 On September 28, 2015, the Clerk sent a second notice to Petitioner again informing him 27 that his action could not go forward until he filed his petition on the proper habeas corpus petition 28 form, completed in full. The Clerk also sent a second notice informing him that he had neither 1 paid the filing fee nor submitted a completed IFP application. The Clerk sent Petitioner a blank 2 habeas corpus petition form as well as a blank IFP application and told him that he must 3 (1) submit his petition on the proper form and (2) either pay the filing fee or return a completed 4 IFP application within twenty-eight days or his action would be dismissed. 5 More than twenty-eight days have passed, and Petitioner has not filed his petition on the 6 proper form, paid the filing fee, returned the IFP application, or otherwise communicated with the 7 court. 8 IT IS HEREBY ORDERED THAT this action is DISMISSED WITHOUT PREJUDICE. 1 9 The Clerk shall enter judgment, terminate all pending motions, and close the file. 10 IT IS SO ORDERED. 11 Dated: November 9, 2015 _____________________________________ DONNA M. RYU 12 United States Magistrate Judge Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 1 26 As mentioned above, Plaintiff has consented to magistrate judge jurisdiction. The undersigned Magistrate Judge, then, has jurisdiction to dismiss this action, even though Defendants have not 27 been served or consented to magistrate jurisdiction. Cf. Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison inmate's action under 28 42 U.S.C. § 1983 as frivolous without consent of defendants because defendants had not been served yet and therefore were not parties). 2 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 THOMAS FRITZ, 4 Case No. 4:15-cv-03561-DMR Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 LAURIE SMITH, 7 Defendant. 8 9 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 10 District Court, Northern District of California. 11 12 Northern District of California That on November 9, 2015, I SERVED a true and correct copy(ies) of the Order of United States District Court 13 Dismissal Without Prejudice, by placing said copy(ies) in a postage paid envelope addressed to the 14 person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said 15 copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 Thomas Fritz ID: ECJ562 Booking 14024734 18 701 S. Able St. Milpitas, CA 95035 19 20 Dated: November 9, 2015 21 22 Susan Y. Soong Clerk, United States District Court 23 24 25 26 By:________________________ Ivy Lerma Garcia, Deputy Clerk to the 27 Honorable DONNA M. RYU 28 3