Bailey v. Swarthout

Filing 21

ORDER signed by District Judge Kimberly J. Mueller on 8/9/2017 ADOPTING 17 Findings and Recommendations in full and GRANTING 10 Motion to Dismiss. The dismissal is without prejudice to Baileys right to pursue his claims under 1983. Within thirty days of this order, plaintiff may file a civil rights complaint in the instant proceeding or voluntarily dismiss his habeas petition and file a new 1983 action. The court DECLINES to issue the certificate of appealability. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBIN LYNN BAILEY,

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Petitioner,

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No. 2:15-cv-0302 KJM DB P

v.

ORDER

GARY SWARTHOUT,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas

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corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as

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provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 28, 2017, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. Petitioner has filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the file, the court

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finds the findings and recommendations to be supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 28, 2017, are adopted in full;

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2. Respondent’s motion to dismiss (ECF No. 10) is granted;

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3. The dismissal is without prejudice to Bailey’s right to pursue his claims under § 1983;

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4. Within thirty days of this order, plaintiff may file a civil rights complaint in the instant

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proceeding or voluntarily dismiss his habeas petition and file a new § 1983 action; and

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5. The court declines to issue the certificate of appealability referenced in 28 U.S.C.

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§ 2253.

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DATED: August 9, 2017.

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UNITED STATES DISTRICT JUDGE

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