(HC)Her v. Mendota Prison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NOU HER, ) Case No.: 1:23-cv-0272 JLT CDB (HC) ) 12 Petitioner, ) ORDER ADOPTING FINDINGS AND ) RECOMMENDATIONS AND DISMISSING THE 13 v. ) PETITION FOR WRIT OF HABEAS CORPUS ) WITHOUT LEAVE TO AMEND AND WITHOUT 14 MENDOTA PRISON, ) PREJUDICE ) 15 Respondent. ) (Doc. 7) ) 16 ) 17 Nou Her is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. (Doc. 1.) On March 13, 2023, the assigned magistrate judge completed 19 a preliminary screening of the petition. (Doc. 7.) The magistrate judge found Petitioner’s claims 20 addressed “conditions of Petitioner’s confinement rather than its legality,” because “Petitioner alleges 21 cruel and unusual punishment and deliberate indifference in violation of the Eighth Amendment, 22 negligence, and medical malpractice.” (Id. at 3.) Therefore, the magistrate judge recommended 23 petition be dismissed without leave to amend. (Id. at 4.) However, the magistrate judge also observed 24 Petitioner’s claims may be raised in a civil rights action pursuant to 42 U.S.C. § 1983 and directed the 25 Clerk of Court to send Petitioner a copy of the form complaint for Section 1983 action. 26 The Court served the Findings and Recommendations on March 13, 2023 and advised Petitioner 27 that he must file any objections within 21 days of the date of service. (Doc. 7 at 4-5.) In addition, the 28 Court warned Petitioner that the “failure to file objections within the specified time may result in the 1 || waiver of rights on appeal.” (d. at 5, citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 2 || Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Petitioner did not file objections, and the 3 || deadline to do so has expired. 4 Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review of this case. 5 || Having carefully reviewed the entire matter, this Court concludes the Findings and Recommendation: 6 || are supported by the record and by proper analysis. Accordingly, the Court ORDERS: 7 1. The Findings and Recommendations dated March 13, 2023 (Doc. 7) are ADOPTED. 8 2. Petitioner’s petition for writ of habeas corpus (Doc. 1) is DISMISSED without leave 1 9 amend, and without prejudice to filing a civil rights action 42 U.S.C. § 1983. 10 3. The Clerk of the Court is directed to close this case. 11 12 IS SO ORDERED. 13 |} Dated: _ April 11, 2023 Charis [Tourn 14 TED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28