Hendricks v. Long

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 4/22/2015 RECOMMENDING that the instant action be dismissed without prejudice, as it is duplicative of Case No. 2:15-cv-00768 AC. Referred to Judge Garland E. Burrell, Jr.; Objections due within 21 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OLIE EUGENE HENDRICKS,

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No. 2:15-cv-0564 GEB AC P

Petitioner,

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v.

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DAVID LONG,

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FINDINGS AND RECOMMENDATIONS

Respondent.

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Petitioner is a state prisoner proceeding pro se who challenges his 2011 conviction in the

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Sacramento County Superior Court. The court’s records reveal1 that petitioner filed two nearly-

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identical petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254. The cases were

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initiated, a day apart, in the United States District Court for the Northern District, then

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transferred, nearly a month apart, to this court. The cases, both entitled Hendricks v. Long, are

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denominated Case No. 2:15-cv-00564 GEB AC P, and Case No. 2:15-cv-00768 AC. Petitioner

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has declined the jurisdiction of the magistrate judge for all purposes in both cases. In the latter

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case, Case No. 2:15-cv-00768 AC, the undersigned has directed petitioner to submit an affidavit

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This court may take judicial notice of its own records and the records of other courts. See
United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631
F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts
that are capable of accurate determination by sources whose accuracy cannot reasonably be
questioned).
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in support of his request to proceed in forma pauperis.2

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Although it is the usual practice of this court to dismiss a party’s second-filed duplicative

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case, the undersigned finds no prejudice in dismissing petitioner’s nearly-identical first-filed case

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in order for the undersigned to follow through on the court’s outstanding order in petitioner’s

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second-filed case and then proceed on the merits of the petition.

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Accordingly IT IS HEREBY RECOMMENDED that the instant action be dismissed
without prejudice, because duplicative of Case No. 2:15-cv-00768 AC.

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These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

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after being served with these findings and recommendations, petitioner may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: April 22, 2015

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Petitioner’s application to proceed in forma pauperis in Case 2:15-cv-00564 GEB AC P is
incomplete. See id. at ECF No. 7.
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