Patkins v. Knipp

Filing 13

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 5/22/17 ORDERING that Petitioner's Application to proceed in forma pauperis 8 , and 9 is GRANTED and that the Clerk's office assign a United States Distr ict Judge to this case. This case has been ASSIGNED to U.S. District Judge John A. Mendez and Magistrate Judge Deborah Barnes for all further proceedings. IT IS RECOMMENDED that his action be dismissed without prejudice. These FINDINGS and RECOMMENDATIONS are submitted to U.S. District Judge John A. Mendez. Objections to these F&Rs due within fourteen days. (Mena-Sanchez, L)

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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 DAVID C. PATKINS, 12 13 14 15 No. 2:15-cv-01623 DB Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS W. KNIPP, Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis 18 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1; 8; 9.) As the court issues findings and 19 recommendations below concerning the petition, the undersigned orders the Clerk’s Office to 20 assign a United States District Judge to this case. 21 Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford 22 the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 23 28 U.S.C. § 1915(a). 24 The court’s records reveal that petitioner has previously filed an application for a writ of 25 habeas corpus attacking the prison disciplinary proceeding challenged in this case. The previous 26 application was filed on June 28, 2012, and was denied on the merits on March 17, 2014. 27 Patkins v. Knipp, Case No. 2:12-cv-01718 JAM CMK, ECF Nos. 17; 18 (E.D. Cal. Mar. 17, 28 1 1 2014). Before petitioner can proceed with the instant application, he must move in the United 2 States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider 3 the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed 4 without prejudice to its re-filing upon obtaining authorization from the United States Court of 5 Appeals for the Ninth Circuit. 6 In accordance with the above, IT IS HEREBY ORDERED that petitioner’s application to 7 proceed in forma pauperis (ECF Nos. 8; 9) is granted and that the Clerk’s Office assign a United 8 States District Judge to this case. 9 IT IS RECOMMENDED that this action be dismissed without prejudice. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, petitioner may file written 13 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 15 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 16 F.2d 1153 (9th Cir. 1991). 17 Dated: May 22, 2017 18 19 20 TIM-DLB:10 21 DB / ORDERS / ORDERS.PRISONER.HABEAS /Patk.1718.succ 22 23 24 25 26 27 28 2

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