(HC)Gutierrez-Perez v. Brewer ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAMON GUTIERREZ-PEREZ, No. 2:22-cv-0643 AC P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 DAVID BREWER, 15 Respondent. 16 17 Petitioner is a federal prisoner proceeding pro se with a petition for a writ of habeas 18 corpus filed pursuant to 28 U.S.C. § 2241. By order filed July 12, 2022, the undersigned screened 19 the petition and found that petitioner’s claims should have been brought, if at all, in an action for 20 damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 21 388 (1971), or for injunctive relief under 28 U.S.C. § 1331. ECF No. 6. Petitioner was given 22 thirty days to either voluntarily dismiss the action or convert the petition into a complaint for 23 damages and/or injunctive relief and cautioned that failure to do one or the other would result in a 24 recommendation that the petition be dismissed for lack of habeas jurisdiction. Id. After 25 petitioner failed to respond to the order in any way, he was given an additional twenty-one days 26 to voluntarily dismiss the action or convert the petition. ECF No. 7. He was cautioned that 27 failure to do so would result in a recommendation that this action be dismissed without further 28 warning. Id. at 2. Twenty-one days have now passed, and petitioner has once again failed to 1 | respond to the order in any way. It will therefore be recommended that the petition be dismissed 2 | for lack of habeas jurisdiction for the reasons set forth in the July 12, 2022 order (ECF No. 6), 3 || which is incorporated herein by reference. 4 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 5 || assign a United States District Judge to this action 6 IT IS FURTHER RECOMMENDED that the petition be dismissed for lack of habeas 7 || jurisdiction for the reasons set forth in the July 12, 2022 Screening Order (ECF No. 6). See L.R. 8 | 110; Fed. R. Civ. P. 41(b). 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 11 | after being served with these findings and recommendations, petitioner may file written 12 || objections with the court. Such a document should be captioned “Objections to Magistrate 13 || Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 14 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 15 Yist, 951 F.2d 1153 (9th Cir. 1991). 16 | DATED: October 6, 2022 ~ 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28