Goff v. Salinas

Filing 39

ORDER signed by Magistrate Judge Allison Claire on 6/13/13 STRIKING 31 Motion for judgment on pleadings as premature. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS L. GOFF,

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No. 2:11-cv-3251 WBS AC P

Petitioner,
v.
M. SALINAS, Warden,

ORDER

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254 and has moved for judgment on the pleadings. ECF No. 31.

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Petitioner challenges his May 20, 2010 prison disciplinary conviction for possession of alcohol,

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for which he was assessed a 120-day credit loss. By Order (ECF No. 37) filed on April 9, 2013,

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respondent’s June 29, 2012 motion to dismiss (ECF No. 16) was denied in part and granted in

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part. The motion was denied on the ground of untimeliness and granted as to petitioner’s claims

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2, 4, 5, 6, and a portion of his claim 3. The action thus proceeds only as to claim 1 and a part of

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claim 3. ECF No. 37 at 2. In claim 1, petitioner alleges that he was unable to collect or obtain

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evidence in support of his defense or to question any witnesses. In the portion of claim 3 which

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still remains for adjudication, petitioner claims that no witnesses were present at his disciplinary

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hearing. Respondent’s answer to the remaining claims (ECF No. 38) was filed on June 7, 2013

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but the matter is not yet submitted as the time for petitioner to file a traverse has not yet expired.
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Petitioner’s abbreviated motion for judgment on the pleadings, pursuant to Fed. R. Civ. P.

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12(c), was filed on February 25, 2013 while the motion to dismiss was pending. Petitioner

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contended that the petition and the briefing on the motion to dismiss presented the court with “all

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material facts” such that “only questions of law remain.” ECF No. 31 at 2. Respondent filed no

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response to the motion, no doubt in part because his motion to dismiss was pending at the time.

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Given this procedural posture, the undersigned does not construe respondent’s failure to oppose

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as a waiver of opposition. See Local Rule 230(l).

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Fed. R. Civ. P. 21(c) provides that “[a]fter the pleadings are closed -- but early enough not

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to delay trial -- a party may move for judgment on the pleadings.” Plaintiff filed his Rule 21(c)

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motion before the pleadings were closed. Indeed, plaintiff filed this motion before respondent

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had answered. Because the motion was premature, it will be stricken.

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The pleadings will be closed after petitioner files his traverse or reply. At that time there

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will be no need for a motion under Rule 12(c) because the matter will be submitted for decision .

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Unless an evidentiary hearing is ordered, judgment will be based on the pleadings and the state

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court record.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s February 25, 2013

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motion for judgment on the pleadings (ECF No. 31) is STRICKEN as premature.

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DATED: June 13, 2013

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______________________________________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:009
goff3251.mjp

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