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Hicks v. Director

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 8, 2008

MICHAEL J. HICKS, PETITIONER,
v.
DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., RESPONDENTS.

ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a civil action styled as a petition for writ of habeas corpus. By order filed May 30, 2008, the petition was dismissed with leave to amend. In that order, the court found that the allegations of the petition appeared to implicate the conditions of petitioner's confinement, rather than the fact or duration of that confinement. Petitioner was therefore granted an opportunity to file either a civil rights complaint or a habeas corpus petition. The court also advised petitioner that if he filed an amended pleading he should also file either an application to proceed in forma pauperis or the appropriate filing fee.

On June 20, 2008, petitioner filed a response to the May 30, 2008 order. In the response, petitioner represents that he is a member of the class in Coleman v. Schwarzenegger, No. 2:90-cv-0520 LKK JFM (PC). He further represents that he has filed two civil rights actions in the United States District Court for the Northern District of California (Northern District) challenging conditions of his confinement in the psychiatric program at Salinas Valley State Prison. Petitioner asks this court to assume jurisdiction over one of those actions, in which he challenges the denial of out of cell exercise between May 23, 2007 and July 31, 2007. In the complaint filed in the Northern District, a copy of which is attached to petitioner's response, petitioner alleges that the denial of exercise was pursuant to "standard policy and procedure of the Salinas Valley Psychiatric Program." By that action, petitioner seeks class certification, injunctive relief, and money damages. By his response to this court's May 30, 2008 order, he apparently seeks to relate that action to the Coleman case, which is before this court.

The federal venue statute requires that a civil action, other than one based on diversity jurisdiction, be brought only in "(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(b). The action petitioner seeks to bring in this court arose at Salinas Valley State Prison, which is in the United States District for the Northern District of California, and the defendant resides in that district. Venue over that action is not proper in this district and petitioner's request to pursue that action in this court should be denied. The court will, however, direct the Clerk of the Court to send a copy of petitioner's June 20, 2008 response and the complaint attached thereto to counsel for the Coleman plaintiffs.

Petitioner has not filed an amended pleading, nor has he filed an application to proceed in forma pauperis. It appears from the June 20, 2008 response that petitioner intends, properly, to pursue his claims in the United States District Court for the Northern District of California. Accordingly, this action should be dismissed without prejudice

In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is directed to send a copy of plaintiff's June 20, 2008 response, including the complaint attached thereto, to Amy Whelan, Esq., Rosen, Bien & Galvan, P.O. Box. 390, San Francisco, CA 94104-0390; and

IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20080908

© 1992-2008 VersusLaw Inc.



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