Gennaro Bruno v. Warden
ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge John F. Walter for Report and Recommendation 24 , Request for Immediate Action to be Taken By this Honorable Court Due to Continued Cruel and Unusual Punishment Being Suffered in FCI Victorville 7 . (hr) Modified on 6/7/2021 (hr).
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. CV 20-6390 JFW (PVC)
ORDER ACCEPTING FINDINGS,
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records
and files herein, and the Report and Recommendation of the United States Magistrate
Judge and Petitioner’s Objections. After having made a de novo determination of the
portions of the Report and Recommendation to which Objections were directed, the Court
concurs with and accepts the findings and conclusions of the Magistrate Judge.
In the Objections, Petitioner requests that his habeas petition be re-filed as a civil
rights complaint under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971). However, for the reasons stated in the Magistrate Judge’s Report
and Recommendation, it is not appropriate to do so here because Petitioner has not
satisfied the pre-filing requirements for civil rights actions, and the Petition itself is not on
its face readily construable as a civil rights complaint. Petitioner does not appear to have
exhausted his administrative remedies, and did not pay the $350 filing fee applying to
prisoner civil rights actions or request to proceed without prepayment of the full filing fee.
Moreover, the Warden of FCI Victorville is the sole named Respondent, but the Petition
does not contain any allegations explaining what the Warden did or did not do, or why the
Warden’s actions or inaction violated Petitioner’s constitutional rights. However, because
dismissal of this action is without prejudice, Petitioner may refile his claims as a civil
rights action following exhaustion of his claims, in a civil rights complaint naming as
defendant(s) the individual(s) who directly violated his constitutional rights, and
supported by a request to proceed in forma pauperis or payment of the full filing fee for
IT IS ORDERED that Judgment shall be entered dismissing this action without
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the
Judgment herein on Petitioner at his address of record and on counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: June 7, 2021
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE
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