Renteria v. Davey

Filing 13

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONALD DAVE RENTERIA, 12 No. 2:17-cv-0784 JAM DB P Petitioner, 13 v. 14 DAVE DAVEY, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 18 writ of habeas corpus under 28 U.S.C. § 2254. In an order filed September 20, 2017, the court 19 found petitioner’s claims should be brought in a civil rights action under 42 U.S.C. § 1983. 20 Petitioner was given the option of amending his pleading to present his due process claim in a 21 civil right complaint or voluntarily dismissing this action. (ECF No. 10.) On October 2, 2017, 22 petitioner filed motion for reconsideration, which the court denied. (ECF Nos. 11, 12.) In the 23 order filed October 6, 2017, the court again advised petitioner that if he wishes to proceed with a 24 civil rights action in this court, he must file his claim on the civil rights complaint form provided 25 to him with the September 20 order. (ECF No. 12.) Petitioner was given twenty days to file a 26 complaint. Petitioner was informed that if he failed to respond to the order, this court would 27 recommend dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b) and Local 28 Rule 110. 1 1 2 3 4 5 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 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, petitioner may file written 8 objections with the court. The document should be captioned “Objections to Magistrate Judge's 9 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 10 specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 11 Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate 12 of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 13 11, Rules Governing § 2254 Cases (the district court must issue or deny a certificate of 14 appealability when it enters a final order adverse to the applicant). 15 Dated: November 13, 2017 16 17 18 19 20 21 22 DLB:9 DLB1/prisoner-habeas/rent0784.fr 23 24 25 26 27 28 2

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