(HC) Kindred v. Price ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT KINDRED, Case No. 1:21-cv-00666-HBK 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO FILE PETITION AS AMENDED PETITION 13 v. IN Kindred v. Superior Ct. of CA Cty. Of Orange, Case No. 1:21-cv-00532-AWI-JLT 14 BRANDON PRICE, (E.D. Cal. Mar. 31, 2021) 15 Respondent. (Doc. No. 1) 16 ORDER VACATING ORDER TO RESPONDENT TO RESPOND TO PETITION 17 (Doc. No. 4) 18 ORDER DIRECTING CLERK OF COURT TO 19 ADMINISTRATIVELY CLOSE CASE 20 21 Petitioner Richard Scott Kindred, a state civil detainee, has pending a pro se petition for 22 writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1). On March 29, 2021, Petitioner filed 23 a habeas petition in the U.S. District Court for the Central District of California. See Kindred v. 24 Superior Ct. of CA Cty. Of Orange, No. 8:21-cv-00582-DSF-KES, Doc. No. 1, (C.D. Cal. Mar. 25 31, 2021). Finding venue proper in the Eastern District of California, the Central District 26 transferred the action to this Court. See Kindred v. Superior Ct. of CA Cty. Of Orange, 1:21-cv- 27 00532-AWI-JLT (E.D. Cal. Mar. 31, 2021). On April 7, 2021, the magistrate judge assigned to 28 1 the case, finding that Petitioner named an improper respondent, dismissed the petition but granted 2 Petitioner leave to file an amended petition. (Id., Doc. No. 6). On April 21, 2021, Petitioner filed 3 an amended petition, which was docketed as a new case in the above-captioned action. (Doc. No. 4 1).1 On April 22, 2021, the undersigned ordered Respondent to respond to the petition. (Doc. 5 No. 4). 6 “Generally, a new petition is ‘second or successive’ if it raises claims that were or could 7 have been adjudicated on their merits in an earlier petition.” Woods v. Carey, 525 F.3d 886, 888 8 (9th Cir. 2008) (quotations and citation omitted). However, the Ninth Circuit has held that where 9 a new habeas petition is filed while one is pending before the District Court, the new petition 10 should be treated as a motion to amend the pending petition. Id. at 890. “The district court then 11 has the discretion to decide whether the motion to amend should be granted.” Id. 12 Here, in case no. 21-cv-00532, Petitioner was granted leave to amend his petition and he 13 did so. The amended petition was inadvertently docketed in a new action at case no. 21-cv- 14 00666. Accordingly, the Court will order the instant petition to be filed in case no. 21-cv-00532 15 as an amended petition. Further, this Court’s order directing Respondent to respond in the action 16 is vacated and the Clerk of Court is directed to administratively close this case. 17 Accordingly, it is ORDERED: 18 1. The Clerk of Court is ORDERED to file the instant petition (Doc. No. 1) as an 19 “amended petition” in Kindred v. Superior Ct. of CA Cty. Of Orange, Case No. 1:21- 20 cv-00532-AWI-JLT (E.D. Cal. Mar. 31, 2021). 21 2. This Court’s April 22, 2021 Order directing Respondent to respond to the petition 22 (Doc. No. 4) is VACATED. 23 3. The Clerk of Court is ORDERED to administratively close this case. 24 /// 25 /// 26 27 1 The amended petition and the original petition are virtually similar except for the amended name 28 of the Respondent. 1 | ITIS SOORDERED. 2 3 | Dated: _ June 9, 2021 Mine WN. BareA Yack HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28