(HC) Ortega v. Kings County Jail ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ALFREDO ORTEGA, Case No. 1:21-cv-00665-EPG-HC 9 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 10 v. HABEAS CORPUS 11 KINGS COUNTY JAIL, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 12 Respondent. 13 14 On April 21, 2021, the Court received a petition for writ of habeas corpus filed by 15 Petitioner Alfredo Ortega. (ECF No. 1). Therein, Petitioner challenges his assignment to the 16 administrative segregation unit of the Kings County Jail. (Id. at 3).1 Attached to the petition is a 17 copy of the administrative grievance Petitioner filed and the Sheriff’s first, second, and third 18 level responses. (Id. at 7–13). 19 Petitioner used a HC-001 form approved by the Judicial Council of California and listed 20 the Superior Court of California, County of Kings in Hanford, California as the applicable court. 21 (ECF No. 1 at 1). However, the instant petition was received by this Court—the Fresno Division 22 of the United States District Court for the Eastern District of California. Although the petition 23 was submitted to this Court, it appeared that Petitioner sought to present his claims to the Kings 24 County Superior Court. 25 On April 27, 2021, the Court ordered Petitioner to either notify the Court that he wished 26 to proceed with his habeas petition in the federal district court or voluntarily dismiss the action 27 so that Petitioner could file his petition and present his claims to the Kings County Superior 1 | Court. (ECF No. 2). To date, Petitioner has not responded to the Court’s order, and the time for 2 | doing so has passed. 3 Given that Petitioner used a HC-001 form approved by the Judicial Council of California 4 | and listed the Superior Court of California, County of Kings in Hanford, California as the 5 | applicable court, the Court finds that Petitioner seeks to present his claims to the Kings County 6 | Superior Court. As Petitioner has presented his claims to the wrong court, the petition should be 7 | dismissed without prejudice. 8 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 9 | habeas corpus be DISMISSED without prejudice. 10 Further, the Clerk of Court is DIRECTED to randomly ASSIGN a District Court Judge to 11 | the present matter. 12 This Findings and Recommendation is submitted to the assigned United States District 13 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 14 | Rules of Practice for the United States District Court, Eastern District of California. Within 15 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 16 | written objections with the court and serve a copy on all parties. Such a document should be 17 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 18 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 19 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 20 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 21 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 73 IT IS SO ORDERED. 24| Dated: _ June 22, 2021 [Je hey 5 UNITED STATES MAGISTRATE JUDGE 26 27 28