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Snipes v. Tilton

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 24, 2008

BEN ALAN SNIPES, PETITIONER,
v.
JAMES E. TILTON, SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER RE: PETITIONER'S RESPONSE TO ORDER TO SHOW CAUSE; AND ORDER ACCEPTING AMENDED PETITION FOR FILING

On October 15, 2007, the Court issued an order dismissing Petitioner's petition with leave to amend. This order permitted Petitioner to file his amended petition no later than October 29, 2007, which the Court later extended to November 26, 2007. On December 20, after Petitioner had failed to file an amended petition, the Court ordered him to show cause why this action should not be dismissed. Petitioner then submitted his response together with an amended petition.

In his response to the Court's order to show cause, Petitioner explains that he mailed his amended petition on November 7, 2007, but that it apparently never arrived and he did not realize this until the Court's order to show cause pointed it out. In a notice entered November 21, 2007 (Docket no. 28), Petitioner stated he had mailed the amended petition but believed it may have been destroyed by hostile prison officials. It appears, however, Petitioner actually believed his amended petition had eventually made its way to the Court, because around December 6, 2007, he sought leave to supplement exhibits to the amended petition. Because no amended petition was on file, the request to supplement exhibits was rejected by discrepancy order (Docket no. 31). In his notice entered November 21, 2007, Petitioner said he would be filing another copy, although he did not submit one until on or around January 14, 2008. In a separate notice also entered November 21, 2007, Petitioner gave notice he had been transferred to a different facility.

Although Petitioner's statements regarding whether he believed his amended petition had been received by the Court and filed are somewhat contradictory, the Court accepts his representation that he attempted to mail it in a timely fashion. The Court's order to show cause, issued December 20, 2007, is discharged. The amended petition Petitioner submitted on or around January 14, 2008 is accepted for filing. The Clerk shall file the submitted amended petition (Docket no. 37, attachments 2--3) as a separate docket item, noting in the docket it is filed nunc pro tunc to January 14, 2008.

IT IS SO ORDERED.

20080124

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