(HC) Savage v. CDCR, No. 2:2018cv01571 - Document 9 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 08/22/18 ORDERING the Clerk of the Court shall randomly assign this matter to a district court judge. Also, RECOMMENDING that The petition be DISMISSED. No certificate of appealability should be issued. The Clerk of the Court should close this case. Assigned and referred to Judge Troy L. Nunley. Objections due within 30 days. (Plummer, M)

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(HC) Savage v. CDCR Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BOBBY RAY SAVAGE 12 Petitioner, 13 No. 2:18-cv-01571-GGH ORDER AND FINDINGS AND RECOMMENDATIONS v. 14 CALIFORNIA DEPARTMENT OF CORRECTIONS & REHABILITATION, 15 Respondents. 16 17 18 19 Petitioner filed a petition for a writ of habeas corpus on May 11, 2018 in the Northern 20 District of California District Court. ECF No. 1. That court transferred the matter to this district 21 on May 21, 2018. ECF No. 3. On June 12, 2018 this court issued an Order dismissing the 22 petition and directing the petitioner to file an amended complaint seeking relief under 42 U.S.C. 23 section 1983 insofar as his petition did not seek release from prison, but rather sought 24 reinstatement of his right to conjugal visits while incarcerated, or to voluntarily dismiss that 25 petition.1 ECF No. 6. The Order further warned petitioner that a failure to obey the order could 26 27 28 1 That Order also directed petitioner either to apply for in forma pauperis status or pay the filing fee required by the court. In fact, he did pay a filing fee at the time he filed in the Northern District so that element of the Order is now inoperative. 1 Dockets.Justia.com 1 result in dismissal of his case. Petitioner filed objections to the Order on July 15, 2018. ECF No. 2 7.2 In essence petitioner has refused to amend his pleading to seek relief under 42 U.S.C. section 3 1983, instead rearguing his position that the claim he has raised is properly a matter for habeas 4 corpus relief. This court disagrees. 5 Accordingly, IT IS HEREBY ORDERED: 6 The Clerk of the Court shall randomly assign this matter to a district court judge. 7 IT IS HEREBY RECOMMENDED that: 8 1. The petition be DISMISSED; 9 2. No certificate of appealability should be issued; 10 3. The Clerk of the Court should close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days 13 after being served with these findings and recommendations, petitioner may file written 14 objections with the court. Such a document should be captioned “Objections to Magistrate 15 Judge’s Findings and Recommendations.” The petitioner is advised that failure to file objections 16 within the specified time may waive the right to appeal the District Court's order. Martinez v. 17 Ylst, 951 F.2d 1153 (9th Cir. 1991, 951 F.2d 1153 (9th Cir. 1991 18 Dated: August 22, 2018 19 20 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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