Johnson v. Warden Livesay Correctional Institution

Filing 70

ORDER denying Motion to Show Cause for Failure to Timely Serve Respondent, ECF No. 54 ; denying as premature Motion for Nunc Pro Tunc Judgment on Previous Dismissal Order, ECF No. 61 ; denying Motion to Challenge the Sufficiency of the Response to the Motion to Show Cause for Failure to Timely Serve Respondent, ECF No. 65 ; and denying Motion for Expedited Consideration, ECF No. 68 . Signed by Magistrate Judge Kaymani D West on 8/22/2016. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Damien O. Johnson,
Petitioner,
v.
Warden Bush of Tyger River,
Respondent.

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C/A No.: 5:15-cv-02059-MBS-KDW

ORDER

This matter comes before the court on several Motions filed by Plaintiff. The undersigned
will address these motions in turn.
1. Motion to Show Cause for Failure to Timely Serve Respondent, ECF No. 54
On July 5, 2016, Petitioner filed a Motion to Show Cause for Failure to Timely Serve
Respondent. ECF No. 54. There, Petitioner argues that he failed to timely serve Respondent
based on Tyger River C.I. staff members’ actions. See id. Plaintiff’s Motion is denied as moot
and unnecessary. After Petitioner filed an Amended Petition for Writ of Habeas, see ECF No. 42,
the court authorized service of process on June 7, 2016, ECF No. 47. On June 8, 2016, the South
Carolina Attorney General’s Office acknowledged receipt of the “Order to Show Case and the
habeas corpus petition.” ECF No. 50.
2. Motion for Nunc Pro Tunc Judgment on Previous Dismissal Order, ECF No. 61
On August 3, 2016, Petitioner filed a Motion that appears to be an attempt to prevent
Respondent from basing forthcoming arguments on “an impertinent complaint date.” ECF No.
61. Though captioned as a Motion for Nunc Pro Tunc, the undersigned interprets this Motion as
one for premature response to Respondent’s pleading. In his Motion, Petitioner requests that the
court amend a clerical error. See id. Petitioner’s Motion is denied as premature. Though

Respondent has accepted service in this action, no responsive pleading has been filed. Currently,
Respondent has until September 2, 2016, to file a Response in this action. See ECF No. 57.
Petitioner may respond to Respondent’s forthcoming pleading in due course and repeat
arguments made herein if need be at the appropriate time.
3. Motion to Challenge the Sufficiency of the Response to the Motion to Show Case for
Failure to Timely Serve Respondent, ECF No. 65
In Petitioner’s Motion, ECF No. 65, filed August 3, 2016, he makes nearly the same
arguments contained in his previously filed Motion to Show Cause, ECF No. 54. Additionally,
he takes issue with Respondent’s Response to the earlier motion. See id. As indicated above, the
undersigned agrees with Respondent’s assertion that Petitioner’s July 5, 2016 Motion was
unnecessary. Again, Petitioner argues with the filing dates Respondent recites in his Response,
ECF No. 55.
Though captioned and docketed as a Motion, ECF No. 65 is really a Reply to
Respondent’s Response, ECF No. 55. However, to the extent this filing is construed as a Motion,
the undersigned denies Petitioner’s Motion to Challenge the Sufficiency of Respondent’s
Response as moot and unnecessary. As indicated above, there is no issue with service in this
action. Furthermore, Petitioner may file a substantive response to Respondent’s forthcoming
pleading in due course.
4. Motion for Expedited Consideration, ECF No. 68
On August 17, 2016, Petitioner filed a motion for expedited consideration. ECF No. 68.
There, Petitioner argues that he is entitled to a writ of habeas corpus and a discharge from state
custody. Id. Petitioner’s request is denied. The undersigned will address the merits of this case
once all parties have had the opportunity to appear and make arguments to the court.
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IT IS SO ORDERED.

August 22, 2016
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge

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