Rivas v. Benov

Filing 17

ORDER Granting Motion To Amend (ECF No. 15 ), signed by Magistrate Judge Stanley A. Boone on 12/30/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CESAR ERNESTO RIVAS,

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Case No. 1:14-cv-01109-SAB-HC

Petitioner,

ORDER GRANTING MOTION TO AMEND

v.

(ECF No. 15)

MICHAEL L. BENOV, Warden,
Respondent.

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus

18 pursuant to 28 U.S.C. § 2241.
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I.

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DISCUSSION

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On July 16, 2014, Petitioner filed a petition for writ of habeas corpus in this Court. (ECF

22 No. 1). The petition challenges Petitioner’s disciplinary conviction because an individual not
23 employed by the Federal Bureau of Prisons (BOP) disallowed good conduct time as a result of an
24 incident report. On October 29, 2014, Respondent filed a motion to dismiss the petition as moot.
25 (ECF No. 14). On December 3, 2014, Petitioner filed his opposition to Respondent’s motion to
26 dismiss. (ECF No. 16).
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On October 28, 2014, Respondent alerted the Court to the fact that the two petitions

28 challenge the same disciplinary hearing. (ECF No. 13). Respondent moved to consolidate the

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1 two cases.

In Case No. 1:14-cv-01118-JLT-HC, on November 5, 2014, Magistrate Judge

2 Jennifer L. Thurston ordered that the Court construe the petition in Case No. 1:14-cv-011183 JLT-HC as a motion to amend the petition in Case No. 1:14-cv-01109-SAB. Magistrate Judge
4 Thurston noted that in Woods v. Carey, 525 F.3d 886, 888-890 (9th Cir. 2008), the Ninth Circuit
5 held that a district court should construe a second or successive petition filed while an earlier
6 petition is still pending in the district court as a motion to amend the earlier petition.
7 Accordingly, Magistrate Judge Thurston ordered that the petition in Case No. 1:14-cv-011188 JLT-HC be filed in this case as a motion to amend the petition.
The Court will not issue a new briefing schedule for the amended petition, because both

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10 parties have submitted briefs on the original petition. The amended petition is nearly identical to
11 the original petition in this case, and does not raise any new claims. Therefore, there is no need
12 for the parties to submit new or additional briefing on the amended petition.
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II.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that the motion to amend the petition, filed in

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17 this case on July 17, 2014, is GRANTED.
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IT IS SO ORDERED.

20 Dated:

December 30, 2014
UNITED STATES MAGISTRATE JUDGE

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