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Donald Roots v. Cate/Valenzuela

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


April 12, 2013

DONALD ROOTS, PETITIONER,
v.
CATE/VALENZUELA, RESPONDENTS.

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

ORDER

Petitioner is a state prisoner proceeding in forma pauperis. On April 5, 2013, petitioner filed a motion for release pending ruling on the underlying petition for writ of habeas corpus. (Dkt. No. 26.) However, on April 9, 2013, petitioner's motion for bail was denied by the district court. (Dkt. No. 28.) Petitioner's current motion is duplicative of the prior motion for bail because both seek release pending resolution of the instant action. Moreover, petitioner's amended complaint/petition was dismissed with leave to amend on March 29, 2013. (Dkt. No. 25.)

On April 9, 2013, petitioner was granted an additional thirty days in which to file a second petition for writ of habeas corpus. Because there is no operative pleading on file, petitioner's motion for release is premature. For these reasons, petitioner's motion for release is denied without prejudice.

On April 5, 2013, petitioner filed a document styled, "Motion for an Order to Show Cause." (Dkt. No. 27.) However, as noted above, there is no operative pleading on file. Respondents cannot be directed to respond until petitioner files a petition for writ of habeas corpus that demonstrates that this court has jurisdiction, and raises cognizable habeas corpus claims. Moreover, petitioner is not required to file a motion to obtain respondents' responsive pleading. Rather, the court is required to screen the petition. If the undersigned determines that the court has jurisdiction over petitioner's claims, and that petitioner has alleged grounds cognizable on habeas review, the court will order respondent to file a responsive pleading. Thus, petitioner's motion is improper at this stage of the pleadings, and is denied.

Petitioner is formally cautioned that a litigant proceeding in forma pauperis may suffer restricted access to the court where it is determined that he has filed excessive motions in a pending action. DeLong v. Hennessey, 912 F.2d 1144 (9th Cir. 1990); see also Tripati v. Beaman, 878 F2d 351, 352 (10th Cir. 1989). Thus, petitioner shall file no further motions until the court has ruled on petitioner's second amended petition, filed in accordance with this court's March 29, 2013 order, on or before May 9, 2013, as required by the district court's April 9, 2013 order.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's April 5, 2013 motion (dkt. no. 26) is denied without prejudice; and

2. Petitioner's April 5, 2013 motion (dkt. no. 27) is denied.

20130412

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