Purdy v. Attorney General of the State of California

Filing 27

ORDER signed by District Judge Kimberly J. Mueller on 3/27/18 ADOPTING 21 FINDINGS AND RECOMMENDATIONS: Petitioner's Response, ECF No. 15, liberally construed as a Rule 4(a)(4) motion is DENIED. This order addresses ECF No. 20 and resolves ECF No. 21. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HELEN SOPHIA PURDY,

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Petitioner,

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No. 2:17-cv-00307-KJM-GGH

v.

ORDER

ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,
Respondent.

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Petitioner is proceeding pro se and in forma pauperis in this habeas matter, which

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was assigned to a Magistrate Judge as provided by Eastern District of California Local Rule

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302(c)(17). Seven months ago, the court dismissed petitioner’s habeas petition and closed the

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case. See ECF Nos. 13-14. Two weeks later, petitioner filed a “Response” challenging the

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dismissal order. Response, ECF No. 15. Before the court responded, petitioner appealed the

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court’s dismissal order. ECF No. 16. The Ninth Circuit is holding petitioner’s appeal in

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abeyance until this court determines (1) whether petitioner’s Response constitutes a motion under

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Federal Rule of Appellate Procedure 4(a)(4), and if so, (2) whether the motion should be granted

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or denied. See ECF No. 20.

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The Magistrate Judge issued Findings and Recommendations (“F&Rs”)

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recommending that the court (1) liberally construe petitioner’s Response as a Rule 4(a)(4) motion

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and (2) deny the motion. ECF No. 21 (issued Nov. 27, 2017). Petitioner objected. ECF No. 24

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(filed Jan. 29, 2018). In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local

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Rule 304, this court has conducted a de novo review of the matter. Having reviewed the file, the

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F&Rs and petitioner’s objections, the court ADOPTS the F&Rs in full.

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In sum, the courts answers the Ninth Circuit’s question (ECF No. 20) as follows:
The court liberally construes petitioner’s Response as a motion under Federal Rule of Civil
Procedure 52(b) seeking to amend the court’s dismissal order; such a motion is one of the
motions listed in Federal Rule of Appellate Procedure 4(a)(4). The court finds the motion does
not address the basis for the court’s dismissal such that it should be denied. Specifically,
dismissal was based on petitioner’s repeated failure to amend her pleading to state a decipherable
civil rights or habeas claim, yet petitioner’s motion does not address this basis but discusses only
the merits of her claims. Compare Dismissal Order, ECF No. 13 (adopting ECF No. 9), with
Response at 1-3.
Accordingly, IT IS HEREBY ORDERED that:
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The Findings and Recommendations, ECF No. 21, filed on November 27, 2017 are

ADOPTED in FULL.
2.

Petitioner’s Response, ECF No. 15, liberally construed as a Rule 4(a)(4) motion is

DENIED.
This order addresses ECF No. 20 and resolves ECF No. 21.
DATED: March 27, 2018.

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UNITED STATES DISTRICT JUDGE

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