Opinion
CV 24-1415 JWH (MRW)
02-26-2024
Mitchell v. Birkholz
Present: Hon. Michael R. Wilner, U.S. Magistrate Judge.
CIVIL MINUTES - GENERAL
Proceedings: ORDER TO SHOW CAUSE RE: HABEAS PETITION
1. Petitioner Mitchell recently filed another habeas corpus petition related to his current incarceration. The current petition refers vaguely to “retaliation” by prison officials “for use of the administrative remedy process” regarding his confinement. Appended to the petition is a prison grievance form that Petitioner may have filed a couple of weeks before initiating the action. (Docket # 1 at 9.)
2. The petition expressly invites the Court to “take judicial notice of 23-CV-10000-JHW MRW.” (Docket # 1 at 3.) That's a reference to a pending habeas action in which Petitioner states, inter alia, that he been the subject of an allegedly “frivolous incident report.” (CV 23-10000 at Docket 1 at 3.) It is unclear whether the alleged retaliatory conduct in the 24-1415 action is the same as that in the 23-10000 action.
3. Petitioner is ordered to show cause why the 24-1415 action should not be dismissed as duplicative as the earlier action pending in this district. He is also ordered to show cause why the action should not be dismissed for failure to state a claim upon which relief can be granted due to the vague and cursory factual statement in the petition. Petitioner's response to this OSC (not to exceed five pages) will be due by March 25.
4. Alternatively , if Petitioner acknowledges that he is not entitled to further federal review of his grievance, he may voluntarily dismiss the action without consequence.
Failure to comply with this order will result in a recommendation that the action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884 (9th Cir. 2019).
5. The Court further notes that this action represents Petitioner's fourth case in this judicial district. (CV 21-6488, 23-2467, 23-10000, and 24-1415.) Petitioner is informed that, as a result of his flurry of federal cases, he is potentially at risk of a finding that he is a vexatious litigant or a prison-based three-strikes violator under 28 U.S.C. §§ 1915 and 1915A. Continued commencement of meritless petitions or civil complaints may result in the closing of the courthouse door for Mr. Mitchell.
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6. The Clerk will serve copies of the petition and this Order on the United States Attorney for the Central District of California. The assigned Assistant U.S. Attorney will file a notice of appearance in the action within 14 days from the date of this Order. However, the government will not be required to respond to the petition until further order of the Court.