(HC) Wilcox v. Merlak

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA SIMON LEE WILCOX, No. 1:19-cv-01410-LJO-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY MOTION FOR DEFAULT 13 v. [Doc. 11] STEVEN MERLAK, Warden, et al., [FOURTEEN DAY DEADLINE] 15 Respondents.

17 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

19 On December 26, 2019, Petitioner filed a motion for entry of default, or in the alternative, a motion for an order to show cause. (Doc. 11.) Petitioner contends that Respondent has failed to timely comply with a court order. Petitioner notes that the Court issued an order on October 18, 2019, directing Respondent to file a responsive pleading within sixty days. (Doc. 4.) Petitioner states Respondent has not filed a motion to dismiss or an answer within the allotted time.

24 The Court notes, however, that Respondent requested, and the Court granted, Respondent’s motion for extension of time on December 23, 2019, which extended the deadline to file a responsive pleading to January 17, 2020. (Docs. 9, 10.) The Court finds that Petitioner is not entitled to default. Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990); see also Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir. 1994).

1 RECOMMENDATION 2 For the foregoing reasons, the Court RECOMMENDS that Petitioner’s motion for default judgment be DENIED.

4 This Findings and Recommendation is submitted to the assigned district judge pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fourteen (14) days after being served with a copy, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are 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).

IT IS SO ORDERED.

Sheila K. Oberto Dated: January 2, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE