Opinion
2:21-cv-08120-MCS-MAA
11-02-2021
Truonghai Thai Nguyen v. DHS et al
Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge
CIVIL MINUTES - GENERAL
Proceedings (In Chambers): Order re: Filing of Petition
On September 20, 2021, the Court received and filed Petitioner Truonghai Thai Nguyen's (“Petitioner”) pro se filing entitled “Motion Request for 90 Day Enlargement & [to] Be Release[d] on Bond or Parole, ” which the Court construes as a habeas petition pursuant to 28 U.S.C. § 2241 (“Petition”). (Pet., ECF No. 1.) Petitioner requests release from federal immigration custody. (Pet. 1-2.)
Pinpoint citations in this Order refer to the page numbers appearing in the ECF-generated headers of the cited documents.
The Petition suffers from certain procedural defects that must be resolved before Petitioner may proceed with this action. These defects are listed below. The Court ORDERS Petitioner to respond to the following issues by no later than December 2, 2021.
No Filing Fee or Request to Proceed In Forma Pauperis
Rule 3(a) of the Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”), which applies to Petitioner's federal habeas petition through Rule 1(b) of the Habeas Rules, requires that a habeas petition be accompanied by the applicable filing fee or a request for leave to proceed in forma pauperis including a certificate from an authorized officer of the petitioner's institution showing the amount of money or securities in the petitioner's institutional account. Here, Petitioner has neither paid the $5 filing fee nor submitted an application for leave to proceed in forma pauperis. (See Pet.)
Petitioner is ORDERED to submit, by no later than December 2, 2021, either (1) the filing fee of $5 or (2) a completed request to proceed in forma pauperis with the required supporting documentation. A form Declaration in Support of Request to Proceed In Forma Pauperis is attached to this Order.
Petitioner is expressly cautioned that failure to respond to this Order by December 2, 2021 may result in a recommendation that the Petition be dismissed without prejudice for failure to prosecute and failure to comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). See, e.g., Young v. United States, 465 Fed.Appx. 597, 598 (9th Cir. 2012) (affirming dismissal of habeas petition for failure to pay filing fee or submit complete request to proceed in forma pauperis); Culler v. Bd. of Prison Terms, 405 Fed.Appx. 263, 264 (9th Cir. 2010) (same).
Alternatively, Petitioner may voluntarily dismiss this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1). The Clerk is directed to attach Form CV-09 (Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c)) to this Order to Show Cause.
It is so ordered.
Circumstances Indicate Petitioner May Have Filed His Petition in the Wrong Court
Petitioner presently is detained at Otay Mesa Detention Center, which is located in San Diego County. (Pet. 1.) Thus, it appears that the United States District Court for the Southern District of California is the proper venue for Petitioner's Section 2241 Petition. See 28 U.S.C. § 84(d) (providing that San Diego County is in the Southern District of California). However, venue may also be proper in the district of Petitioner's removal proceedings. See Rhagav v. Wolf, No. CV 20-00551 PHX DJH (CDB), 2020 U.S. Dist. LEXIS 250751, at *7-8 (D. Ariz. Sept. 27, 2020). The location of Petitioner's removal proceedings is not clear from the Petition. (See Pet.)
Petitioner is advised that, should he continue with this proceeding, he must provide information regarding the location of the Immigration Court with jurisdiction over his removal proceedings. For venue to be proper in this Court, Petitioner's removal proceedings must be before one of the Immigration Courts located within the Central District of California. Petitioner is ORDERED to show cause by no later than December 2, 2021, why the Petition should not be transferred or dismissed for improper venue.
Alternatively, Petitioner may seek to voluntarily dismiss this case. In this event, Petitioner may file Form CV-09 (Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c)), which is attached to this Order.
Petitioner is expressly cautioned that failure to respond to this Order by December 2, 2021 may result in a recommendation that the Petition be dismissed without prejudice for failure to prosecute and failure to comply with a court order pursuant to Federal Rule of Civil Procedure 41(b).
Attachments
Form CV-09 (Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c))
Form CV-27, pp. 6-7 (Declaration in Support of Request to Proceed In Forma Pauperis)