(HC)Gonzalez v. Trate

Filing 13

ORDER DIRECTING Clerk of Court to Mail 9 Motion to Dismiss to Petitioner; ORDER SETTING Briefing Schedule signed by Magistrate Judge Stanley A. Boone on 3/26/2024. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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J.L. GONZALEZ,

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Petitioner,

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B.M. TRATE,

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Petitioner is a federal prisoner currently housed at the United States Penitentiary in
Atwater, California (“USP Atwater”). (ECF No. 1 at 1. 1) On June 15, 2023, Petitioner filed a
petition for writ of mandamus pursuant to 28 U.S.C. § 1361. (ECF No. 1.) Therein, Petitioner
alleges that he, and others housed at USP Atwater, is being denied adequate programming,
healthy diet, hot meals, fresh air, leisure or recreational activities, and access to the courts due to
constant institutional lockdowns allegedly for lack of security staff. (Id. at 2.) Petitioner “seeks
injunctive relief order compelling the warden (respondent) to staff its facilities and operate the
industries as normal as possible and release inmates to normal programming and activities.
Otherwise, classify these pleadings as a class action seeking monetary damages and redress.” (Id.
at 3.)

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ORDER SETTING BRIEFING SCHEDULE
Respondent.

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ORDER DIRECTING CLERK OF COURT
TO MAIL MOTION TO DISMISS (ECF No.
9) TO PETITIONER

v.

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Case No. 1:23-cv-00904-SAB-HC

On October 31, 2023, Respondent filed a motion to dismiss, arguing that the petition
should be dismissed for failure to exhaust administrative remedies and because Petitioner has not

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Page numbers refer to the ECF page numbers stamped at the top of the page.

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1 established that the drastic and extraordinary remedy under § 1361 is warranted. (ECF No. 9.)
2 Petitioner did not file an opposition to the motion to dismiss, and on February 5, 2024, the Court
3 issued findings and recommendation to grant the motion to dismiss and dismiss the petition.
4 (ECF No. 11.) On March 7, 2024, Petitioner filed objections to the findings and
5 recommendation. Therein, Petitioner states that he never received Respondent’s motion to
6 dismiss. (ECF No. 12.)
Accordingly, the Court HEREBY ORDERS that:

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1. The Clerk of Court is DIRECTED to mail Petitioner a copy of Respondent’s motion to
dismiss (ECF No. 9);

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2. Within twenty-one (21) days of the date of service of this order, Petitioner SHALL FILE
an opposition or statement of non-opposition to the motion to dismiss; and

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3. Any reply to an opposition to the motion to dismiss SHALL be filed within fourteen (14)
days after the opposition has been filed in CM/ECF.

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IT IS SO ORDERED.

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March 26, 2024
UNITED STATES MAGISTRATE JUDGE

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