(HC) McCoy v. Sacramento County Jail

Opinion

JEROME ELI McCOY, No. 2:22-cv-2182 KJM DB P Petitioner, v. ORDER Respondent. Petitioner, a pretrial detainee proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. §2254. In an order filed January 12, 2023, this court found that petitioner’s claims should be raised, if at all, in a civil rights action. Based on the differences between civil rights and habeas cases, this court recommended this action be dismissed without prejudice to its renewal as a civil rights action. Petitioner now seeks to convert this action to a civil rights action. However, it has come to the court’s attention that prior to filing the present action in December 2022, petitioner filed a separate habeas action in this court in which he makes the same allegations he makes here.1 That case is McCoy v. Sacramento Co. Jail, et al., 2:22-cv-1170 AC P. Petitioner recently informed the court in that prior case that he wishes to convert it to a civil rights action. 1 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Due to the duplicative nature of the present action, this court will recommend that this action be dismissed. Accordingly, IT IS HEREBY ORDERED that 1. The findings and recommendations filed January 12, 2023 are vacated; and 2. Petitioner’s motion to convert this action to a civil rights case (ECF No. 8) is denied as moot. Further, IT IS RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). These findings and recommendations are submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty 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 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). Dated: January 31, 2023 -BORAH BARNES UNITED STATES MAGISTRATE JUDGE DLB:9 DB prisoner inbox/habeas/R/mcco2 182.23