McCauley v. Winn

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION 12 . It is further ordered substituting J.T. Shartle, Warden as Respondent for Louis W. Winn, Jr.. Petitioner's Motion to Find Respondent in Default (Doc. 10 ) is denied. Signed by Chief Judge Raner C Collins on 2/22/16. (KAH)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gregory McCauley, No. CV-15-00045-TUC-RCC Petitioner, 10 11 v. 12 ORDER Louis Winn, 13 Respondent. 14 15 16 Currently pending before the Court is Petitioner’s Gregory McCauley’s Motion to 17 Find Respondent in Default [Judgement] Pursuant to Rule 55(a) Fed. R. Civ. P. (Doc. 18 10), Magistrate Judge Bruce G. Macdonald’s Report and Recommendation (“R&R”) 19 regarding this motion (Doc. 12), Petitioner’s objections to the R&R (Doc. 13) and 20 Respondent’s Response to these objections (Doc. 14). For the following reasons, this 21 Court will adopt the findings and conclusions of R & R and deny Petitioner’s Motion for 22 Default (Doc. 10). 23 I. Background 24 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter 25 was referred to Magistrate Judge Macdonald for Report and Recommendation. Together 26 with his Reply to Respondent’s Response to Petitioner’s Habeas Petition, Petitioner 27 moved for the Court to find Respondent in default. Doc. 10. On January 14, 2016 28 Magistrate Judge Macdonald recommended this Court (1) substitute J.T. Shartle as 1 respondent in place of Louis W. Winn Jr. and (2) deny Petitioner’s Motion to Find 2 Respondent in Default (Doc. 10). Doc. 12 at 2:23-27. Petitioner filed timely objections to 3 Magistrate Judge Macdonald’s R&R (Doc. 13), to which Respondent filed a Response 4 (Doc. 14). 5 II. Legal Standard 6 The duties of the district court in connection with a R & R are set forth in Rule 72 7 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may 8 “accept, reject, or modify the recommended disposition; receive further evidence; or 9 return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3); 28 10 U.S.C. § 636(b)(1). 11 The Court will not disturb a magistrate judge’s order unless his factual findings 12 are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 13 636(b)(1)(A). “[T]he magistrate judge’s decision…is entitled to great deference by the 14 district court.” U.S. v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). Where the 15 parties object to an R & R, “[a] judge of the [district] court shall make a de novo 16 determination of those portions of the [R & R] to which objection is made.” 28 U.S.C. § 17 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). 18 III. Issues Presented 19 A. Substitution of Respondent J.T. Shartle as Respondent 20 As an initial matter, Magistrate Judge Macdonald took judicial notice that the 21 listed Respondent Louis W. Winn, Jr. is no longer the warden of United States 22 Penitentiary–Tucson (“USP–Tucson”) and recommended that the new Warden of USP– 23 Tucson, J. T. Shartle, be substituted as Respondent in place of Winn. This Court finds 24 Magistrate Judge Macdonald’s findings on this issue to be thorough and well-reasoned, 25 and, there being no objection, adopts the recommendation that J.T. Shartle be substituted 26 as Respondent for Louis W. Winn. 27 B. Default Judgment 28 Petitioner seeks default judgment because Respondent’s Return and Answer to his -2- 1 Petition for a Writ of Habeas Corpus and Motion to Dismiss [were] allegedly untimely. 2 Doc. 10. 3 In considering this issue Magistrate Judge Macdonald reviewed the Order 4 requiring Respondent to answer the Petition (Doc. 6), the certified mail receipt 5 documenting the date that Order was served on Respondent (Doc. 7), and the date 6 Respondent filed his Answer (Doc. 9). Magistrate Judge MacDonald concluded that 7 Respondent’s April 1, 2015 Answer was timely based upon the language of the March 9, 8 2015 Order (directing Respondent to answer the Petition within 20 days of the date of 9 service) and a 20 day date calculation (commencing on March, 12, 2015, the date of 10 service on Respondent, as memorialized in the certified mail receipt). 11 Petitioner objects that Magistrate Judge MacDonald has misread the language in 12 the Court’s March 9, 2015. Petitioner is incorrect. The March 9, 2015 Order does state: 13 “Respondent Louis Winn must answer the Petition within 20 days of the date of service.” 14 Doc. 6 at 3:9-10. Moreover, Magistrate Judge Macdonald’s date calculation is accurate 15 and Respondent’s April 1, 2015 Answer was timely. 16 Petitioner also objects that the Magistrate Judge’s warning regarding Local Rule 17 7.2 of the Federal Rules of Civil Procedure does not apply and that he may seek new 18 relief in a reply memorandum. This objection is, however, moot as the Magistrate Judge 19 considered and addressed Respondent’s new, requested relief in the R&R at issue. 20 Accordingly, 21 … 22 … 23 … 24 … 25 26 IT IS HEREBY ORDERED that Magistrate Judge Macdonald’s Report and 27 Recommendation (Doc. 12) is hereby ACCEPTED and ADOPTED as the findings of 28 fact and conclusions of law by this Court. -3- 1 IT IS FURTHER ORDERED SUBSTITUTING J.T. Shartle, Warden as Respondent 2 for Louis W. Winn, Jr. pursuant to Rule 25(d) of the Federal Rules of Civil Procedure 3 and Rule 43(c)(2) of the Federal Rules of Appellate Procedure; and 4 IT IS FURTHER ORDERED Petitioner’s Motion to Find Respondent in Default (Doc. 5 10) is denied. 6 Dated this 22nd day of February, 2016. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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