Caridad v. Oreol

Filing 10

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 05/11/15 ORDERING the clerk of the court shall assign a District Judge to this action. U.S. District Judge Garland E. Burrell randomly assigned to this action. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN T. CARIDAD, 12 13 14 15 No. 2:15-cv-0403 CKD P Petitioner, v. ORDER AND HARRY OREOL., FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner, a civil detainee proceeding pro se and in forma pauperis, has filed an amended 18 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 9; see ECF No. 8.) 19 In considering whether to dismiss an action as frivolous pursuant to § 1915(d), the court 20 has especially broad discretion. Conway v. Fugge, 439 F.2d 1397 (9th Cir. 1971). The Ninth 21 Circuit has held that an action is frivolous if it lacks arguable substance in law and fact. Franklin 22 v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court’s determination of whether a 23 complaint or claim is frivolous is based on “‘an assessment of the substance of the claim 24 presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted 25 wrong, however inartfully pleaded.’” Franklin, 745 F.2d at 1227 (citations omitted). 26 The amended petition was filed with the court on April 30, 2015. Court records reveal 27 that on June 23, 2014, petitioner filed a petition in another habeas action, challenging the same 28 2001 conviction for arson and residential burglary. Caridad v. Oreol, No. 2:14-cv-1847 KJM AC 1 1 (E.D. Cal.), ECF No. 27.1 Respondent in that case has filed a motion to dismiss the petition, 2 which is currently pending. Id., ECF No. 40. Due to the duplicative nature of the present action, 3 the court finds it frivolous and, therefore, will recommend that this action be dismissed. 28 4 U.S.C. § 1915(d). 5 6 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall assign a district judge to this action. 7 8 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). 9 These findings and recommendations are submitted to the District Judge assigned to this 10 case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served 11 with these findings and recommendations, petitioner may file written objections with the court. 12 The document should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendations.” Petitioner is advised that failure to file objections within the specified time 14 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 15 Cir. 1991). 16 Dated: May 11, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 2 / cari0403.123 23 24 25 26 27 28 1 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2

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