Fisher v. Acevedo

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25cv2677 LL (MSB)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JAMES HARRISON FISHER,
Petitioner,
v.
ACEVEDO, Warden,
Respondent.
Case No.: 25cv2677 LL (MSB)
ORDER:
(1) CONSTRUING PETITIONER’S
MOTION [ECF No. 4] AS RENEWED
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS;
(2) DENYING RENEWED MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS;
(3) ENTERING FINAL JUDGMENT OF
DISMISSAL WITHOUT PREJUDICE;
AND
(4) DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY
[ECF No. 4]
I. 	Relevant Procedural Background
On 	October 	2, 	2025, 	James 	Harrison 	Fisher 	(“Petitioner”), 	a 	state 	prisoner
proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
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§ 2254, challenging a prison disciplinary ruling incurred during his incarceration at Richard
J. Donovan Correctional Facility in San Diego, California, along with a motion to proceed
in forma pauperis (“IFP”). See ECF Nos. 1-2. On October 14, 2026, the Court denied
Petitioner’s IFP motion and dismissed the case without prejudice for failure to satisfy the
filing fee requirement and failure to state a cognizable claim on habeas corpus, and
instructed Petitioner that if he wished to proceed with his habeas case “by challenging the
fact and duration of his confinement,” he must submit both a completed amended petition
form that cured the pleading deficiencies outlined in the Court’s order along with either the
$5.00 filing fee or adequate proof of his inability to pay the fee, on or before December 10,
2025. ECF No. 3 at 4. The Court further instructed that “[i]f Petitioner wishes to challenge
the conditions of his confinement, he must file a new civil rights action pursuant to 42
U.S.C. § 1983, which will be given a new case number.” Id.
On February 6, 2026, Petitioner constructively filed a motion for reconsideration of
the Court’s dismissal order accompanied by a copy of Petitioner’s trust account statement,
in which he “respectfully request[s] for the Court to re-consider my case, which was
dismissed because of the lack of an IFP (6-month) status.” ECF No. 4.1 To date, Petitioner
has not filed a completed amended petition form which cures the pleading deficiencies
outlined in the Court’s October 14, 2025, Order, and the previously set out deadline of
December 10, 2025, for Petitioner to do so is well past. Because Petitioner only asks the
1 While the instant motion is filed-stamped February 20, 2026, the constructive filing date
is February 6, 2026. See ECF No. 4 at 1; see Lott v. Mueller, 304 F.3d 918, 921 (9th Cir.
2002) (discussing the “mailbox rule” under which “a legal document is deemed filed on
the date a petitioner delivers it to the prison authorities for filing by mail.”), citing Houston
v. Lack, 487 U.S. 266, 270-71 (1988) and Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.
1999). This is because Petitioner would have presented the documents to prison authorities
for filing prior to the date they were received by the Court. The record reflects the motion
was signed on February 6, 2026, and includes a notation on the envelope dated February
11, 2026. See id. at 1, 7. While it does not ultimately make a difference to the analysis, the
Court will presume the documents were presented to prison authorities at the time of
signing.
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Court to reconsider his IFP status and does not acknowledge or address the substance of
the rest of the Court’s October 14, 2025 Order, the Court CONSTRUES Petitioner’s
motion for reconsideration [ECF No. 4] as a renewed motion for leave to proceed IFP; the
Court will proceed to consider that motion on its merits despite the lack of timeliness.
II. 	Renewed Motion for Leave to Proceed IFP
Upon review, Petitioner’s trust account statement reflects a $176.63 balance in his
prison trust account at the California correctional institution in which he is presently
confined. See ECF No. 4 at 3, 5. The filing fee associated with this type of action is $5.00.
See 28 U.S.C. § 1914(a). Because it appears Petitioner can pay the $5.00 filing fee,
Petitioner’s renewed motion for leave to proceed IFP [ECF No. 4] is DENIED.
III. 	Failure to Submit Amended Petition
In the October 14, 2025, Order, the Court also dismissed Petitioner’s case without
prejudice for failure to state a cognizable claim on habeas corpus and instructed Petitioner
that if he wished to proceed with his habeas case “by challenging the fact and duration of
his confinement,” he must also submit a completed amended petition form that cured the
pleading deficiencies outlined in the Court’s order. ECF No. 3 at 4. While Petitioner moved
for reconsideration of his IFP status, he has not otherwise acknowledged or responded to
the remainder of the Court’s October 14, 2025, Order. See docket. Because it is now well
past the December 10, 2025, deadline, and Petitioner has made no attempt to correct the
substantive deficiencies of pleading identified in the Court’s October 14, 2025, Order, by
filing an amended petition as directed, this case remains DISMISSED without prejudice.
IV. 	Conclusion and Order
For the reasons discussed above, the Court CONSTRUES Petitioner’s motion for
reconsideration [ECF No. 4] as a renewed motion for leave to proceed IFP, DENIES
Petitioner’s renewed motion for leave to proceed IFP [ECF No. 4], and the instant habeas
action remains DISMISSED without prejudice.
The Court DECLINES to issue a certificate of appealability because it is not
persuaded “jurists of reason would find it debatable whether the district court was correct”
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in dismissing the petition for failing to comply with the procedural requirements for
submission of a habeas petition in this Court. See Slack v. McDaniel, 529 U.S. 473, 484
(2000) (“When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”); see also
28 U.S.C. § 2253(c). The Court DIRECTS the Clerk to enter a final judgment of dismissal
without prejudice and to close this case.
IT IS SO ORDERED.
Dated: March 3, 2026
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