Kelley v. CDCR ESP/SAC et al

Filing 23

ORDER signed by Magistrate Judge Allison Claire on 8/24/2017 ORDERING the 22 Amended Petition construed as notification of voluntary dismissal and this action is DISMISSED without prejudice. CASE CLOSED. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK D. KELLEY, JR.,

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Petitioner,

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v.

No. 2:17-cv-0111 AC P

ORDER

CDCR CSP/SAC, et al.,
Respondents.

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

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corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the

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undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule

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305(a). ECF No. 18.

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By order filed June 22, 2017, petitioner’s habeas application was dismissed because he did

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not provide any information regarding the exhaustion of his state court remedies and even though

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he is determinately sentenced, it was not clear that the rules violation report he was attempting to

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challenge resulted in the loss of time credits. ECF No. 20. He was “advised that in order for the

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court to have habeas jurisdiction over his claim, success on the petition must necessarily result in

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petitioner’s speedier release,” and he was given thirty days to file an amended petition. Id. at 2

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(citing Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016) (en banc). After petitioner failed

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to file an amended petition, he was given additional time to comply with the court’s order. ECF
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No. 21. He has now filed a document, captioned as an amended petition, which states that he will

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be released on August 29, 2017, and that upon his release he will “be filing this complaint under a

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civil suit.” ECF No. 22. He further states that he “do[es] not need an [sic] magistrate judge for

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this case under an [sic] habeas corpus action.” Id. It appears that petitioner does not intend to file

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an amended petition and instead wishes to pursue a civil rights claim after he is released from

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prison.

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Accordingly, IT IS HEREBY ORDERED that the amended petition is construed as a

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notification of voluntary dismissal and this action is DISMISSED without prejudice.

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DATED: August 24, 2017

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