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James K. Amoako v. J. Builteman

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 20, 2012

JAMES K. AMOAKO, PETITIONER,
v.
J. BUILTEMAN, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On June 21, 2012, this action was dismissed without prejudice based on petitioner's failure to file an affidavit in support of a request to proceed in forma pauperis or submit the filing fee. (Dkt. No. 7.) However, on June 29, 2012, petitioner wrote a letter to the Clerk indicating he was transferred from Calipatria State Prison to San Quentin State Prison Hospital for mental health issues. (Dkt. No. 9.) Petitioner anticipated being transferred to the Department of Mental Health for housing in the next few weeks, and asked the court to look him up on the database to find where petitioner is currently housed. (Id.) Petitioner stated he had no access to the law library or his property at the present time, and asked for the status of the instant case.

Moreover, on July 13, 2012, petitioner filed a motion to proceed in forma pauperis, which he signed on April 16, 2012, and which was certified by prison officials at Calipatria on April 24, 2012. (Dkt. No. 10.) The accompanying declaration was signed by petitioner on May 3, 2012, and certified by prison officials at Calipatria State Prison on May 8, 2012. (Dkt. No. 11.)

The California Department of Corrections and Rehabilitation inmate locator shows that petitioner is presently housed at the California Medical Facility. The Clerk of the Court is directed to change petitioner's address of record accordingly.

The court construes petitioner's request as a request to reconsider the June 21, 2012 order. The documents submitted by petitioner demonstrate that he was attempting to obtain the necessary forms required by this court's May 10, 2012 order, but may have been prevented from timely responding based on his transfer. Thus, upon reconsideration, and good cause appearing, the June 21, 2012 order and judgment are vacated, and this action is re-opened. Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Because petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondent will be directed to file a response to petitioner's habeas petition.

In accordance with the above, IT IS HEREBY ORDERED that:

1. The June 21, 2012 order and judgment (dkt. nos. 7, 8) are vacated;

2. Petitioner's motion to proceed in forma pauperis is granted;

3. Respondent is directed to file a response to petitioner's habeas petition within sixty days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, 28 U.S.C. foll. § 2254;

4. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;

5. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fourteen days thereafter;

6. The Clerk of the Court shall serve a copy of this order, the form Consent to Proceed Before a United States Magistrate Judge, and a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General; and

7. The Clerk of the Court is directed to change petitioner's address of record to the San Quentin State Prison, San Quentin, CA 94964, (dkt. no. 9), but shall also serve a copy of the instant order on petitioner at the California Medical Facility, 1600 California Drive, P.O. Box 2000, Vacaville, CA 95696-2000.

20120720

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