Huryta v. Mental Health Board
Filing
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MEMORANDUM AND ORDER -Petitioner's MOTION for Reconsideration 10 is granted. The clerk's office directed to reopen this matter. The clerk's office is directed to mail copies of this Memorandum and Order, the habeas corpus petition (Filing No. 1 ) and the amended habeas corpuspetition (Filing No. 7 ) to Respondent and the Nebraska Attorney General by regular first-class mail. If Respondent elects to file a motion for summary judgment, the procedures set forth within the ord er shall be followed by Respondent and Petitioner. If Respondent elects to file an answer, the procedures set forth within the order shall befollowed by Respondent and Petitioner: ***Pro Se Case Management Deadlines: ( Pro Se Case Management De adline set for 10/9/2014: deadline for Respondent to file state court records in supportof answer or motion for summary judgment and Pro se case Management Deadline set for 11/10/14: check for Respondent to file answer and separate brief.) No discovery shall be undertaken without leave of the court. See Rule6 of the Rules Governing Section 2254 Cases in the United States District Courts. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party and as directed)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROCKY ALLEN HURYTA,
Petitioner,
v.
MENTAL HEALTH BOARD,
Respondent.
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4:14CV3016
MEMORANDUM
AND ORDER
This matter is before the court on Petitioner Rocky Huryta’s (“Petitioner”)
Motion (Filing No. 10) seeking reconsideration of the court’s order dismissing this
matter without prejudice. For the reasons discussed below, the court will grant
Petitioner’s Motion and direct the clerk’s office to reopen this matter and serve the
habeas corpus petitions on Respondent.
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on January 22, 2014. (Filing No. 1.) On June 19, 2014, the court determined
it could not effectively conduct its preliminary review of the petition because the
petition was nonsensical and did not state any discernible grounds for relief. (Filing
No. 6 at CM/ECF p. 1.) See Rule 4 of the Rules Governing Section 2254 Cases. The
court ordered Petitioner to file an amended petition for writ of habeas corpus that
clearly set forth his claims for relief. (Id.)
Petitioner filed an amended petition for writ of habeas corpus on July 10, 2014.
(Filing No. 7.) Upon review of the amended petition, the court determined that it was
also nonsensical, did not state any discernible grounds for relief, and did not set forth
whether Petitioner is “in custody.” See Maleng v. Cook, 490 U.S. 488, 490-91 (U.S.
1989 (stating federal law requires that a “habeas petitioner be ‘in custody’ under the
conviction or sentence under attack at the time the petition is filed”) (citing 28 U.S.C.
§ 2254(a)). Accordingly, the court dismissed this action without prejudice. (Filing
No. 8.)
Petitioner filed the Motion at issue here on August 12, 2014. (Filing No. 10.)
Liberally construed, Petitioner asserts in his Motion that he is in custody pursuant to
a civil commitment order issued by the Ninth Judicial District Mental Health Board,
and the civil commitment is unconstitutional.
In light of this filing, and out of an abundance of caution, the court will grant
Petitioner’s Motion (Filing No. 10), and direct the clerk’s office to reopen this matter
and serve the habeas corpus petitions on Respondent.
IT IS THEREFORE ORDERED that:
1.
Petitioner’s Motion for Reconsideration (Filing No. 10) is granted.
2.
The clerk’s office is directed to reopen this matter.
3.
The clerk’s office is directed to mail copies of this Memorandum and
Order, the habeas corpus petition (Filing No. 1) and the amended habeas corpus
petition (Filing No. 7) to Respondent1 and the Nebraska Attorney General by regular
first-class mail.
4.
By October 9, 2014, Respondent shall file a motion for summary
judgment or state court records in support of an answer. The Clerk of the Court is
directed to set a pro se case management deadline in this case using the following
While Petitioner lists only “Mental Health Board” as Respondent in his habeas
corpus petition and amended petition, his filings make it clear that he is referring to
the Ninth Judicial District Mental Health Board.
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text: October 9, 2014: deadline for Respondent to file state court records in support
of answer or motion for summary judgment.
5.
If Respondent elects to file a motion for summary judgment, the
following procedures shall be followed by Respondent and Petitioner:
A.
The motion for summary judgment shall be accompanied by a
separate brief, submitted at the time of the filing of the motion.
B.
The motion for summary judgment shall be supported by such
state court records as are necessary to support the motion. Those
records shall be contained in a separate filing entitled:
“Designation of State Court Records in Support of Motion for
Summary Judgment.”
C.
Copies of the motion for summary judgment, the designation,
including state court records, and Respondent’s brief shall be
served upon Petitioner except that Respondent is only required to
provide Petitioner with a copy of the specific pages of the record
which are cited in Respondent’s brief. In the event that the
designation of state court records is deemed insufficient by
Petitioner, Petitioner may file a motion with the court requesting
additional documents. Such motion shall set forth the documents
requested and the reasons the documents are relevant to the
cognizable claims.
D.
No later than 30 days following the filing of the motion for
summary judgment, Petitioner shall file and serve a brief in
opposition to the motion for summary judgment. Petitioner shall
submit no other documents unless directed to do so by the court.
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E.
No later than 30 days after the filing of Petitioner’s brief,
Respondent shall file and serve a reply brief. In the event that
Respondent elects not to file a reply brief, he should inform the
court by filing a notice stating that he will not file a reply brief
and that the motion is therefore fully submitted for decision.
F.
If the motion for summary judgment is denied, Respondent shall
file an answer, a designation and a brief that complies with terms
of this order. (See the following paragraph.) The documents shall
be filed no later than 30 days after the denial of the motion for
summary judgment. Respondent is warned that the failure to
file an answer, a designation and a brief in a timely fashion
may result in the imposition of sanctions.
6.
If Respondent elects to file an answer, the following procedures shall be
followed by Respondent and Petitioner:
A.
By October 9, 2014, Respondent shall file all state court records
that are relevant to the cognizable claims. See, e.g., Rule 5(c)-(d)
of the Rules Governing Section 2254 Cases in the United States
District Courts. Those records shall be contained in a separate
filing entitled: “Designation of State Court Records in Support
of Answer.”
B.
No later than 30 days after the filing of the relevant state court
records, Respondent shall file an answer. The answer shall be
accompanied by a separate brief, submitted at the time of the
filing of the answer. Both the answer and brief shall address all
matters germane to the case including, but not limited to, the
merits of Petitioner’s allegations that have survived initial review,
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and whether any claim is barred by a failure to exhaust state
remedies, a procedural bar, non-retroactivity, a statute of
limitations, or because the petition is an unauthorized second or
successive petition. See, e.g., Rules 5(b) and 9 of the Rules
Governing Section 2254 Cases in the United States District
Courts.
C.
Copies of the answer, the designation, and Respondent’s brief
shall be served upon Petitioner at the time they are filed with the
court except that Respondent is only required to provide
Petitioner with a copy of the specific pages of the designated
record which are cited in Respondent’s brief. In the event that the
designation of state court records is deemed insufficient by
Petitioner, Petitioner may file a motion with the court requesting
additional documents. Such motion shall set forth the documents
requested and the reasons the documents are relevant to the
cognizable claims.
D.
No later than 30 days following the filing of Respondent’s brief,
Petitioner shall file and serve a brief in response. Petitioner shall
submit no other documents unless directed to do so by the court.
E.
No later than 30 days after the filing of Petitioner’s brief,
Respondent shall file and serve a reply brief. In the event that
Respondent elects not to file a reply brief, he should inform the
court by filing a notice stating that he will not file a reply brief
and that the merits of the petition are therefore fully submitted for
decision.
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F.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: November 10,
2014: check for Respondent to file answer and separate brief.
7.
No discovery shall be undertaken without leave of the court. See Rule
6 of the Rules Governing Section 2254 Cases in the United States District Courts.
DATED this 25th day of August, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.
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