(HC) Gibbs v. Shasta County, No. 2:2016cv01958 - Document 13 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/27/2016 RECOMMENDING petitioner's 10 filing, construed as a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b), be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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(HC) Gibbs v. Shasta County Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT ALAN GIBBS, 12 13 14 15 No. 2:16-cv-1958 JAM GGH P Petitioner, v. FINDINGS AND RECOMMENDATIONS SHASTA COUNTY, Respondent. 16 17 Petitioner is a Shasta County inmate proceeding pro se with an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. This action was dismissed and judgment entered on 19 September 26, 2016. On October 3, 2016, petitioner filed objections, stating that he had never 20 received the findings and recommendations. That filing was construed as a motion for relief from 21 judgment pursuant to Fed. R. Civ. P. 60(b)(6), and petitioner was permitted to file objections 22 within 14 days of receiving re-service of the findings and recommendations. The order stated that 23 the objections would “be considered briefing pertinent to whether the court should reopen this 24 closed case…” Petitioner has now filed objections. (ECF No. 12). 25 Petitioner states that he does not object to dismissal of this action if he is permitted to 26 amend his habeas petition in case number 16-cv-1869 JAM KJN. Petitioner’s objections do not 27 warrant vacating the judgment. Petitioner is informed that this referenced case has been 28 terminated, the petition in it having been construed as a motion to amend and placed in his first Dockets.Justia.com 1 filed habeas action, case number 2:16-cv-1629 JAM DB. The undersigned did not construe the 2 petition in this action as a motion to amend under Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 3 2008), as it was in case number 16-cv-1869, because the instant petition contained virtually 4 identical allegations to the petition in Gibbs v. Shasta County, No. 2:16-cv-1869 JAM KJN and 5 was therefore found to be duplicative of that case.1 Petitioner is informed that if he seeks to 6 amend his petition, he should file a motion to amend in the lead case, Gibbs v. Attorney General 7 of California, No. 2:16-cv-1629 JAM DB. 8 Accordingly, IT IS HEREBY RECOMMENDED that: petitioner’s filing, (ECF No. 10), 9 construed as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6), be denied. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 12 (14) days after being served with these findings and recommendations, petitioner may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 15 failure to file objections within the specified time may waive the right to appeal the District 16 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: October 27, 2016 18 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 GGH:076/gibb1958.60b 24 25 26 27 1 Case number 2:16-cv-1869 JAM KJN had not been closed at the time of this court’s findings. 28 2

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