Benjamin Tabayoyong Caridad v. Harry Oreol, et al

Filing 53

ORDER signed by Magistrate Judge Allison Claire on 08/25/16 ordering petitioner shall within 14 days after the filing date of this order, file and serve an opposition or statement of non-opposition to respondent's motion to dismiss; no extensio ns of time will be granted. Respondent may within 5 days after service of petitioner's response, file and serve a reply. Due to petitioners temporary detention in the county jail and the possible inaccessibility of his pertinent legal document s, the court will, in an abundance of caution, provide petitioner with copies of the documents essential to preparing his opposition or statementof opposition. The Clerk of Court is directed to send petitioner, together with a copy of this order, cop ies of the following documents: Petitioners First Amended Petition (FAP), ECF No. 27 (11 pp.). Respondents motion to dismiss, ECF No. 51 (6 pp.). Respondents earlier motion for enlargement of time, which contains the relevant chronology and documents in support of respondents motion, ECF No. 49 (23 pp.).(Plummer, M) Modified on 8/25/2016 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN T. CARIDAD,

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No. 2:14-cv-1847 KJM AC P

Petitioner,

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v.

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HARRY OREOL,

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ORDER

Respondent.

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Petitioner is a civil detainee who, in 2009, was adjudged a Mentally Disordered Offender

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pursuant to California Penal Code § 2970, and has since been incarcerated at Patton State

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Hospital. The First Amended Petition (FAP) for writ of habeas corpus, filed pursuant to 28

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U.S.C. § 2254, challenges petitioner’s confinement beyond what he asserts was his previously

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designated release date of June 7, 2013. See FAP, ECF No. 27 at 7-8; see also original petition,

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ECF No. 1 at 1-4.

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By order filed June 12, 2015, this court set a scheduling order. See ECF No. 47.

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Respondent was directed to file a response to the FAP within 60 days. Petitioner was informed

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that if the response to his petition was a motion, his opposition was due within 30 days. See id. at

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2.

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After obtaining extended time, respondent filed a motion to dismiss the FAP on
September 2, 2015. See ECF No. 51. Petitioner has not filed an opposition or statement of

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nonopposition, or any other response, to the motion. On July 6, 2016, petitioner filed a notice

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that he had been moved to the Sacramento County Main Jail. See ECF No. 52. The court has

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confirmed that petitioner remains incarcerated at the jail, awaiting a hearing (not yet scheduled)

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on a petition for continued involuntary commitment under California Penal Code § 2970.1

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner shall, within fourteen (14) days after the filing date of this order, file and

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serve an opposition or statement of nonopposition to respondent’s motion to dismiss; no

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extensions of time will be granted.

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2. Respondent may, within five (5) days after service of petitioner’s response, file and
serve a reply.

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3. Due to petitioner’s temporary detention in the county jail and the possible

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inaccessibility of his pertinent legal documents, the court will, in an abundance of caution,

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provide petitioner with copies of the documents essential to preparing his opposition or statement

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of opposition. The Clerk of Court is directed to send petitioner, together with a copy of this

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order, copies of the following documents:

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a.

Petitioner’s First Amended Petition (FAP), ECF No. 27 (11 pp.).

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b.

Respondent’s motion to dismiss, ECF No. 51 (6 pp.).

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c.

Respondent’s earlier motion for enlargement of time, which contains the relevant

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chronology and documents in support of respondent’s motion, ECF No. 49 (23 pp.).

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4. Petitioner’s failure to timely respond to this order and respondent’s motion to dismiss
will result in a recommendation that this action be dismissed without prejudice.

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SO ORDERED.
DATED: August 25, 2016

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See http://www.sacsheriff.com/inmate_information/SearchNames.aspx (Sacramento County
Inmate Information website) This Court may take judicial notice of facts that are capable of
accurate determination by sources whose accuracy cannot reasonably be questioned. See Fed. R.
Evid. 201; see also City of Sausalito v. O’Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We
may take judicial notice of a record of a state agency not subject to reasonable dispute.”).
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