Alston v. Macomber

Filing 29

ORDER signed by Magistrate Judge Kendall J. Newman on 1/20/16 ORDERING that 27 Motion is DENIED; 28 Motion for Extension of time is GRANTED; Petitioner shall file and serve a traverse within thirty days from the date of this order. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEONON ALSTON,

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No. 2:14-cv-1500 JAM KJN P

Petitioner,

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v.

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J. MACOMBER,

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ORDER

Respondent.

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Petitioner is a state prisoner, proceeding without counsel. On January 11, 2016, petitioner

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filed a motion styled, “Motion to Request Amendment of Order.” (ECF No. 27.) Petitioner

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claims that the December 15, 2015 order absolves respondent of any responsibility for the delay

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in petitioner receiving the answer, and further alleges that the order gives the illusion that it was

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petitioner’s fault for the delay. Petitioner provided a copy of his mail log to demonstrate that he

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did not receive the answer from respondent.

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Petitioner is informed that the December 15, 2015 order did not assign fault for the delay

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in petitioner receiving respondent’s answer. The record does not reflect the cause of the delay.

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Although petitioner appears to believe that respondent failed to mail him a copy, it is just as likely

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that the copy was lost in the mail, either before arriving at the prison, or at the prison. Rather than

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delay the case in an effort to discern the cause, the court took petitioner at his word and, rather

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than further delaying his receipt by ordering respondent to provide another copy, directed the

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Clerk of the Court to provide petitioner with a copy of the answer with the order. Moreover, a

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default judgment is unavailable in a habeas action. See Gordon v. Duran, 895 F.2d 610, 612 (9th

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Cir. 1990). Thus, petitioner’s motion was denied. For these reasons, petitioner’s January 11,

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2016 motion is denied.

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On January 15, 2016, petitioner requested an extension of time to file and serve a traverse.
Good cause appearing, petitioner’s request is granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s January 11, 2016 motion (ECF No. 27) is denied;

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2. Petitioner’s motion for an extension of time (ECF No. 28) is granted; and

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3. Petitioner shall file and serve a traverse within thirty days from the date of this order.
Dated: January 20, 2016

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alst1500.111

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