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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GENNARO BRUNO,
Petitioner,

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v.
WARDEN,

Case No. CV 20-6390 JFW (PVC)
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

Respondent.

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records

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and files herein, and the Report and Recommendation of the United States Magistrate

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Judge and Petitioner’s Objections. After having made a de novo determination of the

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portions of the Report and Recommendation to which Objections were directed, the Court

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concurs with and accepts the findings and conclusions of the Magistrate Judge.

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In the Objections, Petitioner requests that his habeas petition be re-filed as a civil

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rights complaint under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

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403 U.S. 388 (1971). However, for the reasons stated in the Magistrate Judge’s Report

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and Recommendation, it is not appropriate to do so here because Petitioner has not

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satisfied the pre-filing requirements for civil rights actions, and the Petition itself is not on

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its face readily construable as a civil rights complaint. Petitioner does not appear to have

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exhausted his administrative remedies, and did not pay the $350 filing fee applying to

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prisoner civil rights actions or request to proceed without prepayment of the full filing fee.

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Moreover, the Warden of FCI Victorville is the sole named Respondent, but the Petition

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does not contain any allegations explaining what the Warden did or did not do, or why the

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Warden’s actions or inaction violated Petitioner’s constitutional rights. However, because

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dismissal of this action is without prejudice, Petitioner may refile his claims as a civil

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rights action following exhaustion of his claims, in a civil rights complaint naming as

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defendant(s) the individual(s) who directly violated his constitutional rights, and

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supported by a request to proceed in forma pauperis or payment of the full filing fee for

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civil actions.

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IT IS ORDERED that Judgment shall be entered dismissing this action without
prejudice.

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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.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: June 7, 2021

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JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

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