(HC)Wade v. Hill ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHANCELLOR WADE, No. 2:22-cv-0431 TLN CKD P 12 Petitioner, 13 v. ORDER AND 14 RICK HILL, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 On June 17, 2022, respondent timely-filed a motion to dismiss petitioner’s petition for a 18 writ of habeas corpus. Apparently petitioner never received the motion which resulted in 19 petitioner filing a request for entry of default judgement on June 30, 2022. The Clerk denied 20 entry of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure on July 6, 2022. 21 Petitioner objects to the district court judge assigned to this case as to the Clerk’s denial of 22 the entry of default. Since there is no basis to hold respondent in default, the court will 23 recommend that the district court judge assigned to this case deny petitioner’s request for entry of 24 default. 25 It appears petitioner still has not received respondent’s motion to dismiss. Good cause 26 appearing, the court will order respondent to re-serve the motion to dismiss. Petitioner will be 27 given additional time to respond and then respondent will be given additional time to file a reply. 28 ///// ] Finally, petitioner asks that respondent be sanctioned for what petitioner deems an 2 || intentional failure to serve petitioner with the motion to dismiss. There is no evidence that 3 || petitioner’s failure to receive a copy of the motion to dismiss was the result of respondent’s 4 || intentionally not serving it upon him, so petitioner’s motion for sanctions will be denied. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Respondent shall re-serve on petitioner the motion to dismiss originally filed June 17, 7 || 2022, within 7 days. Petitioner’s opposition, or statement of non-opposition, to the motion is due 8 | within 30 days of service of the motion to dismiss. Petitioner’s failure to comply with this 9 || order will result in a recommendation that this action be dismissed. Respondent’s reply shall be 10 | filed within 21 days of service of petitioner’s opposition or statement of non-opposition. 11 2. Petitioner’s July 22, 2022, motion to compel including request for sanctions is denied. 12 IT IS HEREBY RECOMMENDED that petitioner’s July 18, 2022 request for entry of 13 || default judgement be denied. 14 These findings and recommendations are submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 16 || after being served with these findings and recommendations, any party may file written 17 || objections with the court and serve a copy on all parties. Such a document should be captioned 18 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 19 || objections shall be served and filed within fourteen days after service of the objections. The 20 || parties are advised that failure to file objections within the specified time may waive the right to 21 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 | Dated: August 3, 2022 / □□ I / dle ae 8 CAROLYNK. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 | 1 2g wade043 | .def