(PC) Barnette v. City of Sacramento ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH WILSON BARNETTE, No. 2:23-cv-2632 AC P 12 Plaintiff, 13 v. ORDER 14 CITY OF SACRAMENTO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. By order filed November 17, 2023, the 18 court noted that while plaintiff had used the form for a civil rights action, his allegations related to 19 the constitutionality of his conviction rather than the conditions of his confinement. ECF No. 3. 20 Plaintiff was therefore ordered to either (1) notify the court that he wanted to proceed with this 21 case as a civil rights action or (2) file an amended petition for writ of habeas corpus on the form 22 provided by the court. Id. He was further cautioned that if the case proceeded as a civil rights 23 action, it would be recommended that the action be dismissed as barred by Heck v. Humphrey, 24 512 U.S. 477 (1994). Id. Plaintiff has now filed a motion for a stay under Rhines v. Weber, 544 25 U.S. 269 (2005), while he exhausts state court remedies and states that he “does not wish to 26 proceed with case as a civil rights action at this time.” ECF No. 5. He has not, however, filed a 27 petition for writ of habeas corpus on the form provided. 28 //// ] A Rhines stay is available for (1) a petition containing only unexhausted claims, or (2) a 2 || petition that is “mixed” (contains both exhausted and unexhausted claims) and preserves the 3 || federal filing date for unexhausted claims contained in the federal petition. See Mena v. Long, 4 | 813 F.3d 907, 910 (9th Cir. 2016). Because there is presently no habeas petition before the court, 5 || there is nothing to stay. 6 In order to obtain a stay under Rhines, a petitioner must show that (1) good cause exists 7 || for his failure to have first exhausted the claims in state court, (2) the claim or claims at issue 8 | potentially have merit, and (3) petitioner has not intentionally delayed pursuing the litigation. 9 || Rhines, at 544 U.S. at 277-78. Even if there were a petition before the court in this case, plaintiff 10 || has failed to address any of the factors necessary for granting a stay under Rhines. The motion 11 | for stay will therefore be denied without prejudice to a motion in the proper form. 12 Plaintiff is cautioned that the court will not consider a motion to stay without a habeas 13 || petition pending. 14 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for stay (ECF No. 5) is 15 || DENIED without prejudice to a motion in the proper form. 16 | DATED: December 4, 2023 ~ 17 are ALLISON CLAIRE 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28