Alcaraz v. Williams et al

Filing 70

ORDER. IT IS ORDERED that 68 petitioners motion to dismiss Claim 2 is granted. Claim 2 is therefore DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the court's order of 5/14/19, is VACATED to the extent it grants petitioner a moti on to stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). IT IS FURTHER ORDERED that respondents will have sixty days from the date of entry of this order to file an answer to the second amended petition. Signed by Judge James C. Mahan on 6/20/2019. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JUAN ALCARAZ,
Petitioner,

ORDER

v.
BRIAN WILLIAMS, et al.,

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Case No. 2:13-cv-00818-JCM-BNW

Respondents.
On May 14, 2019, the court entered an order granting the petitioner’s motion to

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stay pursuant to the three-step procedure of Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).
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The court indicated that once petitioner amended his petition to delete his unexhausted
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claim – Claim 2 – it would enter an order formally staying the action. Petitioner has filed

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a second amended petition deleting Claim 2. The court has not yet entered its order
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formally staying this action.
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On June 17, 2019, petitioner indicated that he no longer wants to stay this action
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to exhaust Claim 2. Petitioner therefore seeks dismissal of Claim 2 and asks that this
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action proceed as to his other surviving claims.
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As petitioner no longer wishes to pursue exhaustion of Claim 2 and instead wishes
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to dismiss that unexhausted claim, IT IS HEREBY ORDERED that petitioner’s motion to

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dismiss Claim 2 (ECF No. 68) is granted. Claim 2 is therefore DISMISSED WITHOUT
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PREJUDICE.
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IT IS FURTHER ORDERED that the court’s order of May 14, 2019, is VACATED

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to the extent it grants petitioner a motion to stay pursuant to Kelly v. Small, 315 F.3d 1063

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(9th Cir. 2003).

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IT IS FURTHER ORDERED that respondents will have sixty days from the date of

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entry of this order to file an answer to the second amended petition. Petitioner will have

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thirty days from service of the answer within which to file a reply.

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It is so ordered.
June __ 2019.
DATED THIS 20, day of ____ 2019.

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JAMES C. MAHAN
UNITED STATES DISTRICT JUDGE

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