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