Haag v. Tilton

Filing 76

ORDER DENYING Petitioner's 62 64 68 69 Motion for Default and/or Contempt signed by Magistrate Judge Dennis L. Beck on 9/23/2009. (Figueroa, O)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 JAMES TILTON, Director of Corrections 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to 17 the jurisdiction of the United States Magistrate Judge. This case is ready for review on the 18 merits. 19 Petitioner has filed several motions requesting default judgment and/or sanctions against 20 Respondent. Petitioner faults Respondent for failing to submit a complete copy of the 21 transcripts, including the voir dire and opening statements. In a separate order issued 22 concurrently herewith, the Court has granted Petitioner's request for a complete copy of the 23 transcripts, including the voir dire and opening statements. Accordingly, Petitioner's complaint 24 is now moot. 25 Moreover, entry of default is appropriate as to any party against whom a judgment for 26 affirmative relief is sought that has failed to plead or otherwise defend as provided by the Federal 27 Rules of Civil Procedure and where that fact is made to appear by affidavit or otherwise. See 28 1 / v. [Docs. 62, 64, 68, 69] JAMES BRADLEY HAAG, Petitioner, 1:07-CV-00856 DLB HC ORDER DENYING PETITIONER'S MOTIONS FOR DEFAULT AND/OR CONTEMPT

UNITED STATES DISTRICT COURT

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Fed. R. Civ. P. 55(a). Respondent has filed a timely answer to the petition and default is simply unwarranted. Nor has Petitioner demonstrated a basis for imposition of sanctions against Respondent. Local Rule 11-110 provides that "a failure of counsel or of a party to comply with these Local Rules or with any order of the Court may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent power of the Court." A finding of "bad faith" is required for imposing sanctions under the inherent power of the court. Fink v. Gomez, 239 F.3d 989, 993 (9th Cir.2001), citing Barber v. Miller, 146 F.3d 707 (9th Cir.1998). Here, the Court finds no evidence of bad faith on the part of Respondent. It is clear Respondent has addressed the merits of the petition and has thoroughly responded to all court orders in a timely fashion. Furthermore, the relief Petitioner requests, that the petition be granted, is unavailable as a form of sanction. Petitioner's motion for sanctions shall be denied. Based on the foregoing, it is HEREBY ORDERED that: 1. Petitioner's motions for default judgment and/or sanctions are DENIED.

IT IS SO ORDERED. Dated: 3b142a

September 23, 2009

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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