(HC) Martinez v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAFAEL PAHUA-MARTINEZ, No. 2:23-cv-00615 EFB (HC) 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 WARDEN, FCI-HERLONG, 15 Respondent. 16 17 Petitioner filed a petition for relief pursuant to 18 U.S.C. § 2241 on April 3, 2023. ECF 18 No. 1. On July 13, 2023, respondent moved to dismiss the petition, in part due to petitioner’s 19 alleged failure to exhaust his administrative remedies. ECF No. 10 (citing, inter alia, Chua Han 20 Mow w. United States, 730 F.2d 1308, 1313 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985) 21 (finding “it is only when a prisoner has exhausted his administrative remedies that he becomes 22 entitled to litigate the matter in district court”). Petitioner has acknowledged his failure to 23 exhaust his administrative remedies and has also moved to dismiss his petition without prejudice. 24 ECF No. 12. 25 It is hereby ORDERED that the Clerk of Court randomly assign a district judge to this 26 case. Because the parties agree that this petition must be dismissed for failure to exhaust 27 administrative remedies, it is RECOMMENDED that the petition be dismissed without prejudice. 28 //// 1 These findings and recommendations are submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 3 | after being served with these findings and recommendations, any party may file written 4 | objections with the court and serve a copy on all parties. Such a document should be captioned 5 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 6 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 7 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). Ly bs 9 | DATED: September 20, 2023 Zl etigel 7 -LACKM EDMUND F. BRENNAN 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28