Opinion
ED CV 21-01837-CJC (AS)
12-16-2021
Eduardo Inchaustequii v. SBJC Criminal Division FSB18004900
Present: The Honorable Alka Sagar, United States Magistrate Judge.
CIVIL MINUTES - GENERAL
Proceedings:(IN CHAMBERS) ORDER TO SHOW CAUSE
On October 29, 2021, Eduardo Inchaustequii (“Petitioner”), a prisoner at the West Valley Detention Center and proceeding pro se, filed a “Petition for Writ of Habeas Corpus” (Dkt. No. 1), which the Court construed as a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”) (see Dkt. No. 3 at 1). The Petition asserted a challenge to the “United States [C]onstitution a magistrate use of.” (See Petition at 2).
On November 3, 2021, the Court issued a Notice of Judge Assignment and Reference to a United States Magistrate Judge (“Notice of Reference”). (Dkt. No. 2).
On November 5, 2021, the Court issued an Order Requiring the Filing of a First Amended Petition. (Dkt. No. 3). (A copy of the Court's November 5, 2021 Order is attached.) The Court screened the Petition and found it deficient in the following respects:
(1) Petitioner has failed to identify the proper Respondent, the name of the person having custody of Petitioner, i.e., prison warden; (2) Petitioner's claim(s) are incomprehensible and illegible. The Court is unable to discern what claim(s) Petitioner intends to assert; (3) It is not clear whether the Central District of California is the proper venue since is not clear in what court Petitioner suffered his conviction; (4) Petitioner has alleged vague and conclusory “claims, ” in violation of Fed.R.Civ.P. Rule 8(a) and 8(d); (5) Petitioner has failed to plainly state “[t]he statutory or other basis for the exercise of jurisdiction by this Court, ” in violation of Central District Local
Rule 8-1 and Fed.R.Civ.P. Rule 8(a); (6) It is unclear whether Petitioner has exhausted each and every “claim” alleged in the Petition; and (7) Petitioner's claim(s) are noncognizable to the extent that they do not relate to the fact of his confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973).Id. at 1.
The Court ordered Petitioner to file, by no later than December 6, 2021, a First Amended Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254 (“First Amended Petition”) on the proper Central District of California form, a copy of which was provided to Petitioner. Id. at 2. Petitioner was instructed that the First Amended Petition “should set forth clearly each claim which Petitioner intends to raise in this proceeding and the factual bases for each claim.” Id.
The Court's November 5, 2021 Order stated the following: “Petitioner is advised that his failure to comply with the above requirements may result in a recommendation that this action be dismissed for failure to comply with the Court's Order and/or for failure to prosecute pursuant to Fed.R.Civ.P 41(b).” Id. (citing to Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002)).
The Court's November 3, 2021 Notice of Reference and the Court's November 5, 2021 Order, both mailed to Petitioner, were returned to the Court undelivered based on Petitioner's refusal to accept them. (Dkt. Nos. 4-5).
To date, Petitioner has failed to file a First Amended Petition, request an extension of time to do so, or otherwise communicate with the Court since the Petition was filed on October 29, 2021.
Therefore, Petitioner is ORDERED TO SHOW CAUSE, within thirty (30) days of the date of this Order (by no later than January 18, 2022), why this action should not be dismissed for failure to comply with Court orders and/or prosecute pursuant to Fed.R.Civ.P. 41(b).
Petitioner may discharge this Order by filing a First Amended Petition which complies with the Court's November 5, 2021 Order, or a statement setting forth why he is unable to do so.
Petitioner is expressly warned that the failure to timely file a response to this Order will result in a recommendation that this action be dismissed with prejudice for his failure to comply with Court orders and/or for his failure to prosecute. See Fed.R. Civ. P. 41(b).