Ellis v. Diaz

Full title: RUDOLPH ELLIS, Petitioner, v. RALPH DIAZ, Respondent.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Apr 1, 2020

No. 1:20-cv-00134-NONE-EPG-HC (E.D. Cal. Apr. 1, 2020)

Opinion

No. 1:20-cv-00134-NONE-EPG-HC

04-01-2020

RUDOLPH ELLIS, Petitioner, v. RALPH DIAZ, Respondent.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING PETITIONER SIXTY (60) DAYS TO ASSERT CLAIMS UNDER 42 U.S.C. § 1983, AND DIRECTING CLERK OF COURT TO SEND PETITIONER PRISONER CIVIL RIGHTS COMPLAINT FORM AND APPLICATION TO PROCEED IN FORMA PAUPERIS (Doc. No. 5)

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 31, 2020, the assigned magistrate judge issued findings and recommendations recommending that petitioner be granted leave to convert the habeas petition he filed to initiate this action into a civil rights action under 42 U.S.C. § 1983, because the claims asserted therein concern his conditions of confinement and do not challenge any aspect of his conviction and sentence nor seek his release from custody. (Doc. No. 5). The findings and recommendations, along with a blank prisoner civil rights complaint form and an application to proceed in forma pauperis, were served on petitioner and contained notice that any objections thereto were to be filed within thirty (30) days of the date of service. To date, petitioner has filed no objections, and the time for doing so has passed. /////

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the matter. Having carefully reviewed the entire file, the court concludes that the findings and recommendation are supported by the record and proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations issued on January 31, 2020 (ECF No. 5) are ADOPTED;

2. The Clerk of Court is DIRECTED to send petitioner a prisoner civil rights complaint form and an application to proceed in forma pauperis;

3. Petitioner is GRANTED sixty (60) days from the date of service of this order in which to assert claims under 42 U.S.C. § 1983;

4. Petitioner shall submit an application to proceed in forma pauperis, completed and signed, or in the alternative, pay the $400.00 fee for the civil rights action within sixty (60) days from the date of service of this order; and

5. If petitioner fails to assert claims under 42 U.S.C. § 1983, the instant habeas action will be dismissed without prejudice to petitioner refiling his claims in a separate § 1983 action.

IT IS SO ORDERED.

Dated: April 1 , 2020

/s/_________

UNITED STATES DISTRICT JUDGE