Pena v. Board of Prison Hearings et al

Filing 4

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 1/19/12. (lrc, COURT STAFF) (Filed on 1/23/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EUGENIO PENA,
Petitioner,

For the Northern District of California

United States District Court

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No. C 12-00023 SBA (PR)
ORDER OF DISMISSAL

v.
R. GROUNDS, Warden, et al.,
Respondents.

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This action was opened in error when the Court received a habeas petition form from
Petitioner that was intended to be filed in a previously-filed action -- Case No. C 11-6692 SBA (PR).
In Case No. C 11-6692 SBA (PR), Petitioner originally filed that action in the United States District
Court for the Eastern District of California. On December 16, 2011, he began his action by
submitting a copy of his state habeas corpus petition, which he had filed in the California Supreme
Court. In an Order dated December 19, 2011, Magistrate Judge Gary S. Austin transferred
Petitioner's action from the Eastern District to this Court. Magistrate Judge Austin noted that
Petitioner had not "paid the $5.00 filing fee or submitted an application to proceed in forma pauperis
for this action." (Dec. 19, 2011 Order by Magistrate Judge Austin at 1.) On December 29, 2011, the
Clerk of the Court sent a notice to Petitioner informing him that his action had been transferred to
this District and assigned Case No. C 11-6692 SBA (PR).
On January 4, 2012, Petitioner completed and filed a habeas petition form along with other
documents; however, he did not indicate that they were to be filed in Case No. C 11-6692 SBA
(PR). Therefore, as mentioned above, a new action was opened. Also on January 4, 2012, the Clerk
sent a notice to Petitioner directing him to either pay the filing fee or file a completed prisoner's in

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forma pauperis application. The Clerk sent Petitioner a blank in forma pauperis application and told

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him that he must pay the fee or return the completed application within thirty days or his action

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would be dismissed. To date, Petitioner has not responded to the Clerk's January 4, 2012 notice.

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Petitioner currently has two separate habeas actions pending, although he meant to file only

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one action. Accordingly, the Clerk is directed to remove Petitioner's habeas petition form from this

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action along with all other documents filed by Petitioner. The Clerk is then directed to file them in

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his previously-filed action, Case No. C 11-6692 SBA (PR). The Clerk is further directed to mark his

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petition and all other documents as filed on the dates they were received by the Court. The Court

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will review his petition and any other pending motions in a separate written Order in Case No. C 11-

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For the Northern District of California

United States District Court

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6692 SBA (PR).
The present action is DISMISSED because it was opened in error. No filing fee is due. The
Clerk shall close the file.
IT IS SO ORDERED.
DATED: 1/19/12
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
EUGENIO PENA,

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Case Number: CV12-00023 SBA
Plaintiff,
CERTIFICATE OF SERVICE
v.
BOARD OF PRISONS et al,
Defendant.

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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on January 23, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Eugenio Pena H-77082
Salinas Valley State Prison
P.O. Box 689
Soledad, CA 93960-0689

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Dated: January 23, 2012

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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G:\PRO-SE\SBA\HC.12\Pena0023.DISM(error).wpd

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