Chavez v. Warden

Filing 20

ORDER ADOPTING 19 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER GRANTING 18 Respondent's Motion to Dismiss; and ORDER Requiring Plaintiff to Notify Court Whether He Wishes to Convert His Habeas Petition to a 1983 Civil Rights Action or Voluntarily Dismiss This Action Within Twenty-One (21) Days signed by District Judge Dale A. Drozd on 10/22/2018. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JAMES D. CHAVEZ,

12
13
14
15

No. 1:17-cv-01202-DAD-EPG

Petitioner,
v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
RESPONDENT’S MOTION TO DISMISS

WARDEN,
Respondent.

(Doc. Nos. 18, 19)

16
17
18

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

19

pursuant to 28 U.S.C. § 2254. On June 14, 2018, the assigned magistrate judge issued findings

20

and recommendations, recommending that respondent’s motion to dismiss be granted petitioner

21

be granted leave to convert his habeas petition to a civil rights action under 42 U.S.C. § 1983.

22

(Doc. No. 19.) The findings and recommendations were served the parties and contained notice

23

that any objections thereto were to be filed within thirty days of the date of service of that order.

24

To date, no objections to the findings and recommendations have been filed, and the time for

25

doing so has passed.

26

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a

27

de novo review of the case. Having carefully reviewed the entire file, the court holds the findings

28

and recommendation to be supported by the record and proper analysis.
1

1

Accordingly,

2

1. The findings and recommendations issued on June 14, 2018 (Doc. No. 19) are adopted

3

in full;

4

2. Respondent’s motion to dismiss (Doc. No. 18) is granted;

5

3. Within twenty-one (21) days from the date of service of this order, petitioner shall

6

notify the court whether he wishes to:

7

a. convert his habeas petition to a § 1983 civil rights action, which would require

8

petitioner to pay the full $350 filing fee by way of deductions from income to

9

petitioner’s trust account even if granted in forma pauperis status; OR

10

b. voluntarily dismiss the instant action without prejudice to refiling his claims in

11
12

a § 1983 action, subject to any statute of limitations issues; and
4. If petitioner fails to notify the court, the instant habeas action will be dismissed

13
14
15
16

without prejudice to petitioner refiling his claims in a new § 1983 action.
IT IS SO ORDERED.
Dated:

October 22, 2018
UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
2