Palomar v. Hartung et al

Filing 25

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/27/2012 ORDERING that plaintiff's 23 motion to change the case to a petition for writ of habeas corpus is GRANTED; this action is DISMISSED; the Clerk shall docket the 24 petition for writ of habeas corpus filed in this case as a new action pursuant to 28 U.S.C. § 2254. CASE CLOSED.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE R. PALOMAR II,

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Plaintiff,

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No. 2:10-cv-3477 JAM CKD P

vs.
BRADLEY D. HARTUNG, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks

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relief pursuant to 42 U.S.C. § 1983. On November 6, 2012, plaintiff was granted an additional

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30 days to file and serve a second amended complaint. (Dkt. No. 22.) On November 19, 2012,

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plaintiff filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a motion to

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“change the vehicle” of his litigation to a petition for writ of habeas corpus.1 (Dkt. No. 23, 24.)

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The court construes this as a motion to dismiss the instant civil rights action and re-file the

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petition in a new action brought pursuant to § 2254. See Fed. R. Civ. P. 41(a).

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See April 12, 2012 screening order, stating that: “If plaintiff wishes to challenge the
Board’s denial of parole by arguing that the basic requirements of due process under Swarthout
were not met, the proper vehicle for such a challenge is a petition for writ of habeas corpus.”
(Dkt. No. 11 at 5.)
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In accordance with the above, IT IS HEREBY ORDERED THAT:

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1. Plaintiff’s motion to change the case to a petition for writ of habeas corpus

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(Dkt. No. 23) is granted;

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2. This action is dismissed.

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3. The Clerk of Court shall docket the petition for writ of habeas corpus (filed in

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this action as Dkt. No. 24) in a new action pursuant to 28 U.S.C. § 2254.
Dated: November 27, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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