(PC) Gibbs v. Bosenko, No. 2:2018cv00859 - Document 10 (E.D. Cal. 2018)

Court Description: ORDER signed by Magistrate Judge Dennis M. Cota on 11/29/2018 VACATING the 6 findings and recommendations issued on 6/19/2018. This action is recharacterized as a prisoner civil rights action; the Clerk shall update the docket to reflect this act ion proceeds as a prisoner civil rights action under 42 U.S.C. § 1983; petitioner shall file a complaint within 30 days of the date of this order; and the Clerk shall forward to petitioner the court's form complaint for prisoner civil rights cases. (Yin, K)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT A. GIBBS, 12 13 14 No. 2:18-CV-0859-MCE-DMC-P Petitioner, v. ORDER TOM BOSENKO, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254. 19 On June 19, 2018, the court issued findings and recommendations that this action 20 be dismissed for failure to state a cognizable claim. See Doc. 6. On June 27, 2018, and June 28, 21 2018, Petitioner filed objections and requested the action be recharacterized as a civil rights 22 action under 42 U.S.C. § 1983. See Docs. 7 and 8. In the interest of justice, and at the request of 23 Petitioner, the June 19, 2018, findings and recommendations will be vacated and the action will 24 be recharacterized as a civil rights case. See Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 25 2016). Petitioner will be provided an opportunity to file a complaint stating all his claims as 26 against all defendants in a single operative pleading. Petitioner is cautioned that failure to file a 27 complaint within the time specified herein may result in dismissal of the entire action. See Local 28 Rule 110. 1 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations issued on June 19, 2018, are hereby 4 2. This action is recharacterized as a prisoner civil rights action; 5 3. The Clerk of the Court is directed to update the docket to reflect this action 3 6 vacated; proceeds as a prisoner civil rights action under 42 U.S.C. § 1983; 7 4. Petitioner shall file a complaint within 30 days of the date of this order; and 8 5. The Clerk of the Court is directed to forward to petitioner the court’s form 9 complaint for prisoner civil rights cases. 10 11 12 13 Dated: November 29, 2018 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2