Opinion
1:21-cv-00665-EPG-HC
06-22-2021
ALFREDO ORTEGA, Petitioner, v. KINGS COUNTY JAIL, Respondent.
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE
On April 21, 2021, the Court received a petition for writ of habeas corpus filed by Petitioner Alfredo Ortega. (ECF No. 1). Therein, Petitioner challenges his assignment to the administrative segregation unit of the Kings County Jail. (Id. at 3). Attached to the petition is a copy of the administrative grievance Petitioner filed and the Sheriff's first, second, and third level responses. (Id. at 7-13).
Page numbers refer to the ECF page numbers stamped at the top of the page.
Petitioner used a HC-001 form approved by the Judicial Council of California and listed the Superior Court of California, County of Kings in Hanford, California as the applicable court. (ECF No. 1 at 1). However, the instant petition was received by this Court-the Fresno Division of the United States District Court for the Eastern District of California. Although the petition was submitted to this Court, it appeared that Petitioner sought to present his claims to the Kings County Superior Court.
On April 27, 2021, the Court ordered Petitioner to either notify the Court that he wished to proceed with his habeas petition in the federal district court or voluntarily dismiss the action so that Petitioner could file his petition and present his claims to the Kings County Superior Court. (ECF No. 2). To date, Petitioner has not responded to the Court's order, and the time for doing so has passed.
Given that Petitioner used a HC-001 form approved by the Judicial Council of California and listed the Superior Court of California, County of Kings in Hanford, California as the applicable court, the Court finds that Petitioner seeks to present his claims to the Kings County Superior Court. As Petitioner has presented his claims to the wrong court, the petition should be dismissed without prejudice.
Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of habeas corpus be DISMISSED without prejudice.
Further, the Clerk of Court is DIRECTED to randomly ASSIGN a District Court Judge to the present matter.
This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendation.” The assigned United States District Court Judge will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.