Opinion
2:21-cv-2203 TLN AC P
12-22-2021
ERIC J. LIVELY, Petitioner, v. S. PEERY, Respondent.
ORDER
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
By order filed December 6, 2021, petitioner was ordered to notify the court whether he would like to voluntarily dismiss the petition or convert this action to a civil rights complaint under 42 U.S.C. § 1983. ECF No. 3. Petitioner has now filed a response in which he makes various allegations regarding conditions at the prison. ECF No. 4. He also states that he did not file the petition and implies that he is not interested in pursuing a civil action in this court; he does not, however, explicitly request the action be dismissed. Id. at 7-9. Petitioner will therefore be required clarify whether he is seeking to have this action dismissed.
It appears that petitioner may be concerned that he will be charged a filing fee or that this action will be counted as a strike. ECF No. 4 at 8. Petitioner is informed that if he chooses to voluntarily dismiss the action he will not be charged a filing fee and the action will not be deemed a strike under 28 U.S.C. § 1915(g).
Accordingly, IT IS HEREBY ORDERED that within fourteen days of the service of this order, petitioner shall return the attached form notifying the court how he would like to proceed.
Failure to return the attached form will result in a recommendation that the petition be dismissed for lack of habeas jurisdiction.
PETITIONER'S NOTICE ON HOW TO PROCEED
Check one:
___ Petitioner is voluntarily dismissing this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a).
___ Petitioner intends to continue with this action and file an amended complaint.
DATED: ___
___ ERIC J. LIVELY Petitioner pro se