Opinion
No. 1:18-cv-00499-DAD-SKO HC
07-09-2018
ROBERT GONZALES, Petitioner, v. ANDRE MATEVOUSIAN, Respondent.
FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER'S MOTION FOR SUMMARY JUDGMENT
ORDER DIRECTING RESPONDENT TO RE-SERVE THE ANSWER ON PETITIONER
(Doc. 19)
Petitioner, Robert Gonzales, is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. Petitioner filed his petition on March 26, 2018. On June 6, 2018, as ordered, Respondent filed a response to the petition in the form of a motion to dismiss. (Doc. 18.)
Presently before the Court is Petitioner's "Ex Parte Motion for Summary Judgment Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, Based on Respondent's Failure to File an Answer, as Ordered," which was filed on June 26, 2018. (Doc. 19.) Petitioner requests that the Court grant his motion for summary judgment based on Respondent's failure to file an answer to his petition. Id.
While the Federal Rules of Civil Procedure may be applied to habeas proceedings, Petitioner's motion for summary judgment is not appropriate in this instance. See Rule 12, Rules Governing Section 2254 Cases. The Court ordered Respondent to address the merits of Petitioner's claims, which Respondent has done; therefore, the undersigned recommends denying Petitioner's motion.
Petitioner's traverse is currently due on June 21, 2018.
Respondent's answer contains a declaration by C. Buxbaum certifying that the motion to dismiss was mailed to Petitioner on June 6, 2018. Because it appears Petitioner did not receive it, the Court will order Respondent to re-serve the answer to Petitioner by July 6, 2018.
CONCLUSION AND RECOMMENDATION
Based on the foregoing, the undersigned recommends the Court deny Petitioner's Motion for summary judgment.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, either party may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections, if any, shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may constitute waiver of the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. Dated: July 9 , 2018
/s/ Sheila K . Oberto
UNITED STATES MAGISTRATE JUDGE