(HC) Elder v. Swarthout, No. 2:2014cv00892 - Document 5 (E.D. Cal. 2015)
Court Description: ORDER signed by Senior Judge William B. Shubb on 9/9/2015 ADOPTING 3 Findings and Recommendations and DISMISSING 1 Petition for writ of Habeas Corpus. The Court DECLINES to grant the Certificate of Appealability. Petitioner is GRANTED 30 days from the date of this order in which to file a complaint alleging violation of 42 USC 1983 or Notice of Voluntary Dismissal. (Donati, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COREY JEROME ELDER, 12 Petitioner, 13 14 No. 2:14-cv-0892 WBS DAD P v. ORDER GARY SWARTHOUT, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On August 10, 2015, the magistrate judge filed findings and recommendations that were 20 21 served on petitioner and contained notice that any objections to the findings and 22 recommendations were to be filed within fourteen days. Petitioner has filed objections to the 23 findings and recommendations. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 25 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 court finds the findings and recommendations to be supported by the record and by proper 27 analysis. 28 ///// 1 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed August 10, 2015, are adopted in full. 3 2. The petition for writ of habeas corpus (ECF No. 1) is dismissed with leave to file a 4 complaint in this case under the Civil Rights Act, 42 U.S.C. § 1983. 5 6 3. The court declines to grant the certificate of appealability referenced in 28 U.S.C. § 2253. 7 4. Petitioner is granted thirty days from the date of this order in which to file a complaint 8 for alleged violations of his civil rights under 42 U.S.C. § 1983 or a notice of voluntary dismissal 9 pursuant to Federal Rule of Civil Procedure 41(a)(1) if he chooses to do so. 10 Dated: September 9, 2015 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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