Renteria v. Davey
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/13/2017 RECOMMENDING this action be dismissed without prejudice to its renewal as a civil rights action. Referred to Judge John A. Mendez; Objections to F&R due within 14 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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RONALD DAVE RENTERIA,
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No. 2:17-cv-0784 JAM DB P
Petitioner,
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v.
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DAVE DAVEY,
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FINDINGS AND RECOMMENDATIONS
Respondent.
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Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a
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writ of habeas corpus under 28 U.S.C. § 2254. In an order filed September 20, 2017, the court
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found petitioner’s claims should be brought in a civil rights action under 42 U.S.C. § 1983.
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Petitioner was given the option of amending his pleading to present his due process claim in a
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civil right complaint or voluntarily dismissing this action. (ECF No. 10.) On October 2, 2017,
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petitioner filed motion for reconsideration, which the court denied. (ECF Nos. 11, 12.) In the
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order filed October 6, 2017, the court again advised petitioner that if he wishes to proceed with a
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civil rights action in this court, he must file his claim on the civil rights complaint form provided
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to him with the September 20 order. (ECF No. 12.) Petitioner was given twenty days to file a
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complaint. Petitioner was informed that if he failed to respond to the order, this court would
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recommend dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b) and Local
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Rule 110.
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More than twenty days have passed and petitioner has not filed a civil rights complaint or
otherwise responded to the court’s October 6 order.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without
prejudice to its renewal as a civil rights action.
These findings and recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 result in waiver of the right to appeal the district court’s order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate
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of appealability should issue in the event he files an appeal of the judgment in this case. See Rule
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11, Rules Governing § 2254 Cases (the district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the applicant).
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Dated: November 13, 2017
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DLB:9
DLB1/prisoner-habeas/rent0784.fr
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