(PC) Balzarini v. Newsom ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BALZARINI, No. 2:20-cv-1457 CKD P 12 Plaintiff, 13 v. ORDER AND 14 GAVIN NEWSOM, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 On July 29, 2020, plaintiff was ordered to either file a completed in forma pauperis 18 application or pay the filing fee within thirty days and was cautioned that failure to do so would 19 result in dismissal. The thirty-day period has now expired, and plaintiff has not responded to the 20 court’s order. 21 The court notes that in his complaint plaintiff seeks release from San Quentin State Prison. 22 When a state prisoner challenges the legality of his custody and the relief he seeks is the 23 determination of his entitlement to an earlier or immediate release, his sole federal remedy is a 24 writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). If plaintiff seeks release 25 from San Quentin State Prison, the only action available to him in federal court would be a 26 habeas corpus action and that action must be filed in the United States District Court for the 27 Northern District of California as San Quentin State Prison lies within that court’s territorial 28 jurisdiction. 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Clerk of the Court assign a district court judge to this case; and 3 2. Plaintiffs motion for appointment of counsel and release from prison (ECF Nos. 7 and 4 | 8) are denied. 5 IT IS HEREBY RECOMMENDED that this action be dismissed. 6 These findings and recommendations are submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen after 8 | being served with these findings and recommendations, plaintiff may file written objections with 9 | the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 10 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time 11 | waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 12 1991). ae id Sag Dated: October 19, 2020 CA rd fle os CAROLYN K. DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 | | 19 balz1457.frs 20 21 22 23 24 25 26 27 28