Gennaro Bruno v. Warden

Filing 26

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).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GENNARO BRUNO, Petitioner, 12 13 14 15 v. WARDEN, Case No. CV 20-6390 JFW (PVC) ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records 18 and files herein, and the Report and Recommendation of the United States Magistrate 19 Judge and Petitioner’s Objections. After having made a de novo determination of the 20 portions of the Report and Recommendation to which Objections were directed, the Court 21 concurs with and accepts the findings and conclusions of the Magistrate Judge. 22 23 In the Objections, Petitioner requests that his habeas petition be re-filed as a civil 24 rights complaint under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 25 403 U.S. 388 (1971). However, for the reasons stated in the Magistrate Judge’s Report 26 and Recommendation, it is not appropriate to do so here because Petitioner has not 27 satisfied the pre-filing requirements for civil rights actions, and the Petition itself is not on 28 its face readily construable as a civil rights complaint. Petitioner does not appear to have 1 exhausted his administrative remedies, and did not pay the $350 filing fee applying to 2 prisoner civil rights actions or request to proceed without prepayment of the full filing fee. 3 Moreover, the Warden of FCI Victorville is the sole named Respondent, but the Petition 4 does not contain any allegations explaining what the Warden did or did not do, or why the 5 Warden’s actions or inaction violated Petitioner’s constitutional rights. However, because 6 dismissal of this action is without prejudice, Petitioner may refile his claims as a civil 7 rights action following exhaustion of his claims, in a civil rights complaint naming as 8 defendant(s) the individual(s) who directly violated his constitutional rights, and 9 supported by a request to proceed in forma pauperis or payment of the full filing fee for 10 civil actions. 11 12 13 IT IS ORDERED that Judgment shall be entered dismissing this action without prejudice. 14 15 16 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. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 DATED: June 7, 2021 21 22 23 JOHN F. WALTER UNITED STATES DISTRICT JUDGE 24 25 26 27 28 2

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