Opinion
CASE NO. C19-5531 BHS
10-01-2019
NICHOLAS LOUIS NOTARO, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION AS MOOT AND DISMISSING CASE
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable J. Richard Creatura, United States Magistrate Judge. Dkt. 4. On June 10, 2019, Petitioner Nicholas Notaro ("Petitioner") filed a proposed federal habeas petition pursuant to 28 U.S.C. § 2254. Dkts. 1, 1-1. On July 23, 2019, Judge Creatura ordered Petitioner to submit a complete petition and pay the filing fee or submit the proper form to proceed in forma pauperis by August 23, 2019. Dkt. 3. On September 10, 2019, Judge Creatura issued the instant R&R recommending dismissal because Petitioner failed to respond. Dkt. 4.
The R&R was served on Petitioner's address of record at Stafford Creek Corrections Center, but on September 10, 2019, his mail was returned to the Court as undeliverable. Dkt. 5. The docket entry corresponding to this event states that "[p]er staff at Stafford Creek, [Petitioner] passed away 7/28/2019." Id.
Petitioner's death mooted his federal habeas petition. See Garceau v. Woodford, 399 F.3d 1101 (9th Cir. 2005) ("Because petitioner's death renders this case moot, the petition for writ of habeas corpus should be dismissed as moot."); see also Dove v. United States, 423 U.S. 325 (1976) (dismissing a certiorari petition because petitioner had died); Griffey v. Lindsey, 349 F.3d 1157 (9th Cir. 2003) (dismissing a petition for writ of habeas corpus as moot because petitioner had died). Therefore, the Court having considered the R&R, the remaining record, and the docket for this case does hereby find and order as follows:
(1) The R&R is DECLINED as moot;
(2) Petitioner's federal habeas petition, Dkt. 1-1, is DISMISSED; and
(3) The Clerk shall close this case.
IT IS SO ORDERED.
Dated this 1st day of October, 2019.
/s/_________
BENJAMIN H. SETTLE
United States District Judge