Wilborn v. Gaetz

Filing 34

ORDER REOPENING CASE, DENYING AS MOOT 29 MOTION for Judgment on the Pleadings filed by Leron Wilborn, GRANTING 27 MOTION to Vacate filed by Leron Wilborn and DENYING AS MOOT 33 MOTION for Status Check filed by Leron Wilborn. ORDER al so VACATES January 8, 2013 ORDER 22 and January 8, 2013 Judgment 23 . SEE ORDER FOR DETAILS. The Court ALLOWS Wilborn up to and including August 15, 2013 to filed objections to the Report. Signed by Chief Judge David R. Herndon on 7/30/13. (klh, ) Modified on 7/30/2013 (klh, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LERON WILBORN,
Plaintiff,
No. 10-0423-DRH

vs.
RANDY PFISTER

Defendant.

ORDER
HERNDON, Chief Judge:
Pending before the Court is petitioner’s February 27, 2013, motion for relief
from a void judgment (Doc. 27).

The Court construes this motion as

second/amended motion to alter or amend the January 8, 2013 Orders and
Judgments. Specifically, Wilborn moves the Court to amend or alter its January
8, 2013 Order and Judgment denying his habeas corpus petition and dismissing
with prejudice his cause of action (Docs. 22 & 23). Wilborn contends that he did
not receive “notice with a Magistrate Judge Donald G. Wilkerson’s Report and
Recommendation (Doc. 20)” and, therefore, did not have an opportunity to file
timely objections to the Report and Recommendation (“The Report”). As noted,
this is the second time petitioner is seeking the same relief, however, this time
petitioner has submitted additional documentation in support of motion. Based
on the following, the Court grants the motion.

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In the Court’s January 29, 2013 Amended Memorandum and Order the
Court found:
Clearly, the record reflects that both the Report and the Notice were
sent to the address, Pontiac Correctional Center, that petitioner
provided in his December 14, 2011 change of address (Doc. 19).
Specifically, the notation in the Court’s record, placed there by the
Clerk, is that the Order and Notice were sent to the petitioner by
electronic means to Pontiac Correctional Center. The Court finds
that both the Report and Notice were properly sent to petitioner as
provided by the procedures set forth in the November 27, 2012
General Order: No. 2012-1, In Re: Procedural Rules for Electronic
Filing Program. The Court does not accept his assertion that he did
not receive the Order and Notice.
(Doc. 26, ps. 3-4). Again, petitioner contends that he did not receive notice of the
Report because he is an incarcerated person who does not receive notices of
electronic mail directly. Specifically, that neither Michelle R. Clark nor Mark
Spencer at Pontiac Correctional Center have provided petitioner with a notice of
the Report. However, in this motion, unlike the last motion, petitioner submitted
a counseling memorandum from Kathleen M. Bruner, executive secretary, stating:
“Mark Spencer responded and advised he had already advised you verbally that
he did not receive any ‘report and recommendation’ from the court. He will be
sending you a memo.” (Doc. 27, p. 4). He also submitted a memorandum from
Mark Spencer, Sr. Paralegal, Office of Adult Education and Vocational Services,
stating: “This memorandum is to confirm our conversation in which I told you
that the library did not receive by the e-filing system the magistrate’s
recommendation.” (Doc. 27, p. 7).

While the Court is unsure as to why/how

petitioner did not receive either the Report or the notice, the Court finds that this
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additional documentation indicates that the procedures with the e-fling system
did not work properly in this case.

Thus, the Court finds that petitioner is

entitled to the relief he requests.
Accordingly, the Court GRANTS petitioner’s motion (Doc. 27). The Court
VACATES the Court’s January 8, 2013 Order adopting the Report (Doc. 22) and
the January 8, 2013 Judgment (Doc. 23). The Court DIRECTS petitioner to file
objections to the Report on or before August 15, 2013.

Further, the Court

DENIES as moot the corrected motion for judgment on the pleadings (Doc. 29)
and the motion for status check (Doc. 33).

Further, the Court DIRECTS the

Clerk of the Court to send a paper copy of this Order via regular mail to
petitioner.
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2013.07.30
10:22:00 -05'00'

Signed this 30th day of July, 2013.

Chief Judge
United States District Court

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