Josh Thomas v. Roberts et al

Filing 11

ORDER DISMISSING PETITION for Writ of Habeas Corpus and ORDER DENYING 10 Motion to Extend Time to File 1983 Complaint signed by Magistrate Judge Sheila K. Oberto on 10/29/2015. CASE CLOSED. (Jessen, A)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
JOSH THOMAS,

10

Petitioner,

11
v.

12
13

ORDER DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS
AND DENYING MOTION TO EXTEND
TIME TO FILE § 1983 COMPLAINT

THE SUPERIOR COURT OF FRESNO, et
al.,

14

Case No. 1:15-cv-01119-SKO HC

Respondents.

(Doc. 10)

15
16
17

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.1 On September 8, 2015, the Court performed its preliminary screening

18
19

of the petition and dismissed it with leave to amend, noting that many of the claims would be more

20

properly brought in a civil rights action pursuant to 42 U.S.C. § 1983. After Petitioner filed

21

objections and requested an extension of time on September 25, 2015, the Court granted the

22

extension of time and attempted to clarify appropriate amendments that would render the petition

23

cognizable. On October 27, 2015, Petitioner notified the Court of his intent to file a § 1983

24

complaint and not to pursue a habeas petition. Accordingly, the Court will dismiss the petition for

25
habeas corpus.
26
27
28

///
1

Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented, in writing, to the jurisdiction of a United States Magistrate
Judge to conduct all further proceedings in this case, including the entry of final judgment.

1

Petitioner also moves for an extension of time in which to file his § 1983 complaint. Because

1
2

the § 1983 complaint must be filed as a new action, the Court cannot enter an order extending the

3

time for filing it in this case. As stated in the Court's September 29, 2015, order, however:

4

"Petitioner delays filing a § 1983 action at his own risk since any claims to be set forth in that action

5

continue to be governed by applicable statutes of limitation and are not tolled by the order permitting

6

amendment of the habeas petition." Doc. 9.

7
Petitioner is also reminded that the venue (place to file) for a § 1983 action is different from
8
9

that of a habeas petition. Because a claim concerning conditions of confinement must be filed in the

10

venue in which the prison is located, if Petitioner, who is presently confined in the California

11

Medical Facility in Vacaville (Solano County), elects to pursue those claims in a § 1983 action, he

12

must file that complaint in the Sacramento Division of the Eastern District of California.

13
14

The motion for extension of time in which to file an action pursuant to 42 U.S.C. § 1983 is
hereby DENIED. The petition for writ of habeas corpus is hereby DISMISSED. The Clerk of Court

15
16

is directed to close the case.

17
18

IT IS SO ORDERED.

19

Dated:

20

October 29, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
2