Gibbs v. Shasta County
Filing
13
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/27/2016 RECOMMENDING petitioner's 10 filing, construed as a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b), be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
ROBERT ALAN GIBBS,
12
13
14
15
No. 2:16-cv-1958 JAM GGH P
Petitioner,
v.
FINDINGS AND RECOMMENDATIONS
SHASTA COUNTY,
Respondent.
16
17
Petitioner is a Shasta County inmate proceeding pro se with an application for a writ of
18
habeas corpus pursuant to 28 U.S.C. § 2254. This action was dismissed and judgment entered on
19
September 26, 2016. On October 3, 2016, petitioner filed objections, stating that he had never
20
received the findings and recommendations. That filing was construed as a motion for relief from
21
judgment pursuant to Fed. R. Civ. P. 60(b)(6), and petitioner was permitted to file objections
22
within 14 days of receiving re-service of the findings and recommendations. The order stated that
23
the objections would “be considered briefing pertinent to whether the court should reopen this
24
closed case…” Petitioner has now filed objections. (ECF No. 12).
25
Petitioner states that he does not object to dismissal of this action if he is permitted to
26
amend his habeas petition in case number 16-cv-1869 JAM KJN. Petitioner’s objections do not
27
warrant vacating the judgment. Petitioner is informed that this referenced case has been
28
terminated, the petition in it having been construed as a motion to amend and placed in his first
1
filed habeas action, case number 2:16-cv-1629 JAM DB. The undersigned did not construe the
2
petition in this action as a motion to amend under Woods v. Carey, 525 F.3d 886, 888 (9th Cir.
3
2008), as it was in case number 16-cv-1869, because the instant petition contained virtually
4
identical allegations to the petition in Gibbs v. Shasta County, No. 2:16-cv-1869 JAM KJN and
5
was therefore found to be duplicative of that case.1 Petitioner is informed that if he seeks to
6
amend his petition, he should file a motion to amend in the lead case, Gibbs v. Attorney General
7
of California, No. 2:16-cv-1629 JAM DB.
8
Accordingly, IT IS HEREBY RECOMMENDED that: petitioner’s filing, (ECF No. 10),
9
construed as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6), be denied.
10
These findings and recommendations are submitted to the United States District Judge
11
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
12
(14) days after being served with these findings and recommendations, petitioner may file written
13
objections with the court and serve a copy on all parties. Such a document should be captioned
14
“Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that
15
failure to file objections within the specified time may waive the right to appeal the District
16
Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
17
Dated: October 27, 2016
18
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
GGH:076/gibb1958.60b
24
25
26
27
1
Case number 2:16-cv-1869 JAM KJN had not been closed at the time of this court’s findings.
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?