Myles v. Montgomery

Filing 19

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/7/2016 DISCHARGING the 10/15/2015 order to show cause 17 ; and petitioner must file an oppostion to respondent's 15 motion to dismiss within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ORLANDO ANTONIO MYLES,

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No. 2:15-cv-00591-GEB-GGH

Petitioner,
v.

ORDER

WARDEN W.L. MONTGOMERY,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with this action pursuant to 28 U.S.C. §

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2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).

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On October 15, 2015, the court ordered petitioner to show cause within thirty days why he

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failed to file a timely opposition to respondent’s August 18, 2015, motion to dismiss. ECF No.

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17. The same order warned petitioner that if he failed to respond to the court’s order or file an

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opposition within thirty days the undersigned would recommend that his case be dismissed. Id.

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On November 17, 2015, petitioner filed a response to the court’s order, explaining that he did not

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file a timely opposition for two reasons. ECF No. 18. First, petitioner states that he was moved

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from Calipatria State Prison to Susanville (High Desert State Prison) and as a result has had

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problems receiving his mail. Id. Second, petitioner states that his “paralegal” (who writes all of

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his filings) has recently moved as well, which delays his responses because mail sent to her must
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be re-directed from her old address, then mailed back to him for his signature. Id. Petitioner has

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yet, however, to file an opposition to respondent’s motion to dismiss in accordance with the

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court’s order.

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The court finds that petitioner has shown good cause why he failed to file a timely

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opposition to respondent’s motion to dismiss up until the filing of his response. Petitioner does

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not offer an explanation for why, however, he failed to file an opposition along with his response,

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or in the almost two months that has passed since then. Nevertheless, the court will grant

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petitioner one more opportunity to file an opposition. Petitioner must file an opposition to

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respondent’s motion to dismiss within thirty days of the service of this order. If petitioner fails to

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do so, the court will recommend that this matter be dismissed for failure to prosecute under Rule

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41(b).

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In accordance with the foregoing, THE COURT HEREBY ORDERS that:

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1. Its October 15, 2015, order to show cause, ECF No. 17, is DISCHARGED; and

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2. Petitioner must file an opposition to respondent’s motion to dismiss within thirty days

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of the service of this order. Petitioner is cautioned that failure to file an opposition to the pending

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motion to dismiss will result in a recommendation that this action be dismissed.

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Dated: January 7, 2016

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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/GGH17; myle591.disch

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