Opinion
No. 2:15-cv-0564 GEB AC P
04-22-2015
OLIE EUGENE HENDRICKS, Petitioner, v. DAVID LONG, Respondent.
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se who challenges his 2011 conviction in the Sacramento County Superior Court. The court's records reveal that petitioner filed two nearly-identical petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254. The cases were initiated, a day apart, in the United States District Court for the Northern District, then transferred, nearly a month apart, to this court. The cases, both entitled Hendricks v. Long, are denominated Case No. 2:15-cv-00564 GEB AC P, and Case No. 2:15-cv-00768 AC. Petitioner has declined the jurisdiction of the magistrate judge for all purposes in both cases. In the latter case, Case No. 2:15-cv-00768 AC, the undersigned has directed petitioner to submit an affidavit in support of his request to proceed in forma pauperis.
This court may take judicial notice of its own records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned).
Petitioner's application to proceed in forma pauperis in Case 2:15-cv-00564 GEB AC P is incomplete. See id. at ECF No. 7.
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Although it is the usual practice of this court to dismiss a party's second-filed duplicative case, the undersigned finds no prejudice in dismissing petitioner's nearly-identical first-filed case in order for the undersigned to follow through on the court's outstanding order in petitioner's second-filed case and then proceed on the merits of the petition.
Accordingly IT IS HEREBY RECOMMENDED that the instant action be dismissed without prejudice, because duplicative of Case No. 2:15-cv-00768 AC.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: April 22, 2015
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE