(HC) McDade v. Hense, No. 1:2009cv00059 - Document 13 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus for Failure to Exhaust Administrative Remedies signed by Magistrate Judge Dennis L. Beck on 11/16/2009. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/21/2009. (Bradley, A)
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(HC) McDade v. Hense Doc. 13 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 WILLIE McDADE, 9 10 11 12 13 ) ) Petitioner, ) ) v. ) ) ) LYDIA HENSE, ) ) Respondent. ) ____________________________________) 1:09-cv-00059 LJO YNP [DLB] (HC) FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 15 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. No Respondent has yet appeared in this case. On August 19, 2009, this Court issued an Order to Show Cause why the petition should not 18 be dismissed for failure to exhaust administrative remedies, to which Petitioner was given thirty days 19 to respond. (Doc. #12). As of the date of this Finding and Recommendation, Petitioner has not 20 responded to the Order to Show Cause. 21 Petitioner is challenging a prison disciplinary action, which requires that all administrative 22 remedies be exhausted before this Court can hear the petition. The petition fails to mention a single 23 administrative remedy sought by Petitioner and Petitioner has failed to respond to the Order to Show 24 Cause. Because Petitioner has given no indication to this Court that he has sought administrative 25 review regarding this matter, the petition for writ of habeas corpus is should be dismissed. 26 RECOMMENDATION 27 Accordingly, IT IS HEREBY RECOMMENDED that the petition for a writ of habeas 28 corpus be DISMISSED WITHOUT PREJUDICE. It is FURTHER RECOMMENDED that the U .S. D istrict Court E . D . California 1 Dockets.Justia.com 1 2 Clerk of Court be DIRECTED to enter judgment for Respondent. This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill, 3 pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days after being served with 4 the Findings and Recommendation, any party may file written objections with the Court and serve a 5 copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's 6 Findings and Recommendation." Any reply to the objections shall be served and filed within ten 7 days after service of the objections. The parties are advised that failure to file objections within the 8 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 9 1153 (9th Cir. 1991). 10 11 12 IT IS SO ORDERED. Dated: 3b142a November 16, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict Court E . D . California 2
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