Gibbs v. Shasta County

Filing 11

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/6/16 ORDERING that Petitioner's motion is construed as one pursuant to F. R. Civ. P. 60(b)(6). The Findings and Recommendations at issue (ECF 3 ) as well as the Order, (ECF 5 ) be re-s erved on petitioner; Petitioner may file Objections to the Findings and Recommendations within 14 days of the service of the foregoing documents; the objections will be considered briefing pertinent to whether the court should reopen this closed case; failure to timely file objections may result in a denial of the Rule 60(b) motion.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT ALAN GIBBS,

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No. 2:16-cv-1958 JAM GGH P

Petitioner,
v.

ORDER

SHASTA COUNTY,
Respondent.

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PROCEDURAL BACKGROUND
Petitioner, a Shasta County inmate proceeding in pro se filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 on August 18, 2016. ECF No. 1. That filing was

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accompanied by neither an application to proceed in forma pauperis nor a payment of the filing

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fee. The court, therefore undertook to screen Petitioner’s application to consider whether to

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dismiss it as frivolous pursuant to 28 U.S.C. § 1915(d). After an examination of the record, the

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court determined that the present petition was virtually identical to an August 8, 2016 petition

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filed against the same respondent. See 2:15-cv-1869 JAM KJM. The court therefore found the

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petition frivolous and recommended that the application be dismissed without prejudice. See

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F. R. Civ. P. 41(b). ECF No. 3. The findings and recommendations were submitted to the Judge

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assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(1), and advised petitioner

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that he may file written objections within fourteen days after being served and that failure to file
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objections within the specified time may waive his right to appeal the District Court’s Order.

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ECF No. 3. The Clerk of the Court entered a notice that the findings and recommendations were

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served on petitioner on August 25, 2016.

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No objections were received. However on August 31, 2016 Petitioner filed a Motion to

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Consolidate the above-captioned matter with other “recently filed habeas” petitions which he

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identified at 2:16-cv-01668 GEB AC, 2:16-cv-01670 JAM AC, 2:16:1868 TLN EFB, 2:16-cv-

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1958 GGH and 2:16-cv-01869 KJN. ECF No. 5. This court signed an order denying the Motion

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to Consolidate as moot on September 13, 2016, ECF No. 6, finding that the court in the lead case,

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Gibbs v. Boyd, Civ. No. 2:13-2631 KJM CMK denied a previous Motion to Consolidate. Id.

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On September 26, 2016 United States District Judge John A. Mendez issued an Order that

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adopted the foregoing Findings and Recommendations and dismissed the Petition without

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prejudice. ECF No. 8. Judgement was entered pursuant to that Judge Mendez’s Order on the

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same date. ECF No. 9. Judge Mendez’s Order and the Judgment were served on plaintiff by mail

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on September 26, 2016.

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On October 3, 2016 filed an “Objection to Order, Notice of Non-Service, Objection to

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Findings and Recommendations,” claiming that he had never received those Findings and

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Recommendations and requesting reservice of them so that he might respond. ECF No. 10.

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CONCLUSION
Although the record in this case reflects that the Findings and Recommendations were

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served by mail to the same address as Petitioner reflects on his Objection, Etc., it is not

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inconceivable that the document did not find its way to him at the Shasta County Jail. Therefore

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the court, in the interests of assuring due process of law, orders as follows:

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1.

Petitioner’s motion is construed as one pursuant to F. R. Civ. P. 60(b)(6).

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2.

The Findings and Recommendations at issue (ECF 3) as well as the Order, (ECF

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5) be re-served on petitioner;
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Petitioner may file Objections to the Findings and Recommendations within 14

days of the service of the foregoing documents; the objections will be considered briefing

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pertinent to whether the court should reopen this closed case; failure to timely file objections may

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result in a denial of the Rule 60(b) motion.

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Dated: October 6, 2016

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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