(HC) Thomas v. Covello ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT EARL THOMAS, Case No. 2:21-cv-01121-WBS-JDP (HC) 12 Petitioner, ORDER CONVERTING RESPONDENT’S MOTION TO DISMISS INTO A MOTION 13 v. FOR SUMMARY JUDGMENT AND OFFERING RESPONDENT THIRTY DAYS 14 PATRICK COVELLO, TO FILE A NEW OPPOSITION 15 Respondent. ECF No. 19 16 17 Petitioner Robert Earl Thomas, a state prisoner, filed a petition for a writ of habeas corpus 18 under 28 U.S.C. § 2254. Respondent moves to dismiss the petition, ECF No. 19, and argues that 19 the petition is time-barred. That motion to dismiss, however, contains portions of petitioner’s 20 medical records that are not generally suited for consideration on a motion to dismiss or for 21 inclusion by way of judicial notice insofar as they are not matters of public record. See Walker v. 22 Woodford, 454 F. Supp.2d. 1007, 1022 (S.D. Cal. 2006); see also Sigler v. Am. Honda Motor Co., 23 532 F.3d 469, 476-77 (6th Cir. 2008) (declining to take judicial notice of the contents of non- 24 prisoner medical records). I will therefore treat respondent’s motion as one for summary 25 judgment and grant petitioner an opportunity to submit evidence in opposition. See Fed. R. Civ. 26 P. 12(d). 27 Petitioner is advised of the following with respect to opposing a motion for summary 28 judgment under Rule 56: Such a motion is a request that the court grant judgment in respondent’s 1 favor. A motion for summary judgment will set forth the facts that respondent asserts are not 2 reasonably subject to dispute and that entitle it to judgment under applicable law. To oppose a 3 motion for summary judgment, petitioner may file one or more affidavits or declarations setting 4 forth the material facts that petitioner believes are subject to reasonable dispute, as long as the 5 person who signs it has personal knowledge of the facts stated. Petitioner may rely on written 6 records, but he must prove they are what petitioner assert them to be. Petitioner may rely on all 7 or any part of responses to discovery propounded in this case, i.e, answers to interrogatories, 8 admissions and deposition transcripts. If petitioner fails to contradict respondent’s evidence with 9 counter-affidavits or other admissible evidence, the court may accept respondent’s evidence as 10 true and grant the motion. If there is good reason why facts required to oppose the motion are not 11 available to petitioner, the court will consider a request to postpone considering the motion. If 12 petitioner does not file a written opposition to the motion or a request to postpone consideration 13 of it, the court may consider the failure to act as a waiver of opposition to the respondent’s 14 motion. If the court grants respondent’s motion, whether opposed or unopposed, judgment will 15 be entered for respondent without reaching the merits of petitioner’s petition. 16 Local Rule 260(b) provides that “[a]ny party opposing a motion for summary judgment or 17 summary adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts 18 and admit those facts that are undisputed and deny those that are disputed, including with each 19 denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory 20 answer, admission, or other document relied upon in support of that denial.” Local Rule 260(b) 21 further provides that “[t]he opposing party may also file a concise ‘Statement of Disputed Facts,’ 22 and the source thereof in the record, of all additional material facts as to which there is a genuine 23 issue precluding summary judgment or adjudication,” and that “[t]he opposing party shall be 24 responsible for the filing of all evidentiary documents cited in the opposing papers.” Finally, 25 Local Rule 183, governing persons appearing in pro se, provides that failure to comply with the 26 Federal Rules of Civil Procedure and Local Rules may be grounds for dismissal, judgment by 27 default, or other appropriate sanctions. 28 1 Accordingly, it is ORDERED that: 2 1. Respondent’s motion to dismiss is sua sponte convert into one for summary 3 || judgment pursuant Rule 56. See Fed. R. Civ. P. 12(d). 4 2. In light of this conversion, petitioner may, if he chooses, file a new opposition 5 | within thirty days of this order’s entry. If petitioner does file a new opposition, respondent may 6 | file areply within seven days of that opposition. If petitioner does not, I will refer to his current 7 | opposition in adjudicating the motion for summary judgment. 8 9 IT IS SO ORDERED. 10 ( 1 Ow — Dated: _ November 22, 2022 Q_——. 11 JEREMY D. PETERSON Db UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28