(HC)Wade v. Hill

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CHANCELLOR WADE, No. 2:22-cv-0431 TLN CKD P 12 Petitioner, 13 v. ORDER AND RICK HILL, FINDINGS AND RECOMMENDATIONS 15 Respondent.

17 On June 17, 2022, respondent timely-filed a motion to dismiss petitioner’s petition for a writ of habeas corpus. Apparently petitioner never received the motion which resulted in petitioner filing a request for entry of default judgement on June 30, 2022. The Clerk denied 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 the entry of default. Since there is no basis to hold respondent in default, the court will recommend that the district court judge assigned to this case deny petitioner’s request for entry of default.

25 It appears petitioner still has not received respondent’s motion to dismiss. Good cause appearing, the court will order respondent to re-serve the motion to dismiss. Petitioner will be 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 || intentional failure to serve petitioner with the motion to dismiss. There is no evidence that || petitioner’s failure to receive a copy of the motion to dismiss was the result of respondent’s || 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, || 2022, within 7 days. Petitioner’s opposition, or statement of non-opposition, to the motion is due | within 30 days of service of the motion to dismiss. Petitioner’s failure to comply with this || order will result in a recommendation that this action be dismissed. Respondent’s reply shall be | 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 || default judgement be denied.

14 These findings and recommendations are submitted to the United States District Judge || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days || after being served with these findings and recommendations, 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 Recommendations.” Any response to the || objections shall be served and filed within fourteen days after service of the objections. 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. YIst, 951 F.2d 1153 (9th Cir. 1991).

22 | Dated: August 3, 2022 / □□ I / dle ae 8 CAROLYNK. DELANEY 24 UNITED STATES MAGISTRATE JUDGE | 1 2g wade043 | .def