Free Order on Motion to Dismiss - District Court of California - California

Case 3:08-cv-00405-BTM-WMC

Document 6

Filed 05/12/2008

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

MANUEL TAMAYO TORRES, JR, Petitioner, v. MIKE EVANS, Warden, Respondent.

Civil No.

08-0405 BTM (WMc)

ORDER GRANTING MOTION TO VOLUNTARILY DISMISS ACTION

On February 28, 2008, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On March 11, 2008, this Court dismissed the case without prejudice because Petitioner had failed to satisfy the filing fee requirement, failed to use the proper form, failed to name a proper respondent, and failed to allege exhaustion of state court remedies. The Court also noted that it was unclear whether Petitioner was seeking to challenge the fact or duration of his confinement pursuant to 28 U.S.C. § 2254 or, was seeking to challenge the conditions of his confinement. Petitioner was notified that if he wished to challenge the conditions of his confinement, he must file a civil suit under 42 U.S.C. § 1983. (See March 11, 2008 Order, Civ. No. 08-0405 BTM (WMc) (doc. no. 2).) The Court also notified Petitioner that, in order to have his case reopened, he would have to satisfy the filing fee requirement and file a First Amended Petition which cured the pleading deficiencies outlined in the Order. (Id. at 5-6.)

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Case 3:08-cv-00405-BTM-WMC

Document 6

Filed 05/12/2008

Page 2 of 2

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On April 3, 2008, Petitioner filed a First Amended Petition along with a request to proceed in forma pauperis (doc. nos. 3, 4). On April 9, 2008, Petitioner filed a letter which this Court construes as a request to voluntarily dismiss his case (doc. no. 5). In the motion, Petitioner states "I would like to close a case I re-filed mailed in on 3/31/08. Civil docket for case # 3:08-cv-0405-BTM-WMC." (Id.) Petitioner goes on to explain that he wishes to pursue his civil rights case, Torres v. Snyder, et al., 08-0427 J (AJB), which was filed in this Court and transferred to the Eastern District (doc. no. 3).1 (Id.) Petitioner states, "I see no other reason to have that same case filed if it's been filed to Defendant `Marlin Snyder'. . ." (Id.) Thus, it appears from the letter that Petitioner wishes to proceed with his civil rights case and voluntarily dismiss the current habeas action. Given Petitioner's request, the motion to voluntarily dismiss is GRANTED. The request to proceed in forma pauperis is DENIED as moot. The Clerk shall enter judgment dismissing the case without prejudice and shall close the file. IT IS SO ORDERED.
DATED: May 12, 2008

16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in this Court on March 6, 2008. (Torres v. Snyder, et al., 08cv0427 J (AJB) filed Mar. 6, 2008 (doc. no. 1).) On March 17, this Court transferred the case to the Eastern District of California because the claims were based on facts alleged to have occurred at California Correctional Institution in Tehachapi, California. (Order, Mar. 17, 2008 (doc. no. 3).)
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Honorable Barry Ted Moskowitz United States District Judge

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