(HC) Drone v. Federal Bureau of Prisons

Filing 9

ORDER signed by Chief District Judge Kimberly J. Mueller on 01/17/23 ADOPTING 8 Findings and Recommendations in full. Petitioner's writ of habeas corpus is DISMISSED without prejudice for failure to state a claim. CASE CLOSED (Licea Chavez, V)

Case 2:21-cv-00063-KJM-DMC Document 9 Filed 01/17/23 Page 1 of 2
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID DRONE,

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Petitioner,

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No. 2:21-CV-0063-KJM-DMC-P

v.

ORDER

FEDERAL BUREAU OF PRISONS,

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Respondent.

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Petitioner, a federal prisoner proceeding pro se, brings this petition for a writ of habeas

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corpus under 28 U.S.C. § 2241. The matter was referred to a United States Magistrate Judge as

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provided by Eastern District of California local rules.

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On November 2, 2022, the Magistrate Judge filed findings and recommendations, which

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were served on the parties and which contained notice that the parties may file objections within

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the time specified therein. No objections to the findings and recommendations have been filed.

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The magistrate judge recommended dismissing plaintiff’s action after the court warned plaintiff

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“that failure to oppose the [respondent’s] motion [to dismiss] could be construed as consent to the

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relief requested” under Local Rule 230(c) and plaintiff did not file an opposition. F&R at 1, ECF

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No 8.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Local Rule 230(c) states a “failure to file a

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timely opposition may be construed by the Court as a non-opposition to a motion” but does not
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Case 2:21-cv-00063-KJM-DMC Document 9 Filed 01/17/23 Page 2 of 2
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state a failure to respond may be construed as consent to the relief requested. E.D. Cal. L.R.

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230(c). Courts may either dismiss complaints due to plaintiff’s non-opposition or consider the

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complaint’s underlying merits regardless of the non-opposition. Compare Ghazali v. Moran,

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46 F.3d 52, 54 (9th Cir. 1995) (dismissing case with prejudice due to plaintiff's non-opposition)

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with Elec. Recyclers Int'l, Inc. v. Calbag Metals Co., No. 1:14-CV-01352, 2015 WL 1529490, at

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*2 (E.D. Cal. Apr. 2, 2015) (“Although Calbag’s motion now faces no opposition, the court’s

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duty remains to consider its underlying merits.”).

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Here, this court has discretion to dismiss the case on a procedural basis due to plaintiff’s

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non-opposition. Moreover, this court has reviewed the merits of petitioner’s petition for writ of

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habeas corpus and finds defendant’s motion to dismiss for failing to state a claim under 28 U.S.C.

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§ 2241 should be granted without prejudice. Petitioner’s claims are not covered under 28 U.S.C.

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§ 2241, which exists to litigate claims of persons held in state custody in violation of the

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Constitution of the United States.

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Accordingly, IT IS HEREBY ORDERED:
1. The findings and recommendations filed November 2, 2022 (ECF No. 8), are
adopted in full;
2. Petitioner’s writ of habeas corpus is dismissed without prejudice for failure to
state a claim under 28 U.S.C. § 2241; and
3. The Clerk of the Court is directed to close this case.
DATED: January 17, 2023.

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