(HC) Powe v. Biter, No. 2:2015cv02639 - Document 30 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 1/4/2018 RECOMMENDING 25 Motion for Reconsideration should be denied. Referred to Judge Garland E. Burrell, Jr. Objections due 14 days after being served with these findings and recommendations. (Henshaw, R)
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(HC) Powe v. Biter Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE POWE, 12 13 14 15 No. 2:15-cv-2639 GEB GGH Petitioner, v. MARTIN D BITER, FINDINGS AND RECOMMENDATION Respondent. 16 17 Petitioner seeks reconsideration of the district judge’s order of dismissal with prejudice of 18 the Petition (ECF No. 23), most probably a Fed.R.Civ.P.52(b) or 59(e) motion, based on the 19 perception that the order of dismissal was issued not on the merits, but because petitioner did not 20 timely file objections. 21 The undersigned need not engage in a discussion of the Rules’ standards, nor must it 22 discuss the background of this case. Simply put, petitioner’s request for reconsideration is based 23 on a misreading of the order of dismissal. The Order, ECF 23, commences with a brief 24 procedural history of the extensions of time for objections, and concludes in a new paragraph: 25 26 27 28 The court has reviewed the file and finds that the findings and recommendations are supported by the record and by the Magistrate Judge’s analysis. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed February 21, 2017 are adopted in full; 2. Petitioner’s petition is dismissed with prejudice; 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 3. No Certificate of Appealability shall be issued; and 4. The Clerk of the Court shall close this file. The only findings and recommendations existing at that the time were those on the merits of the statute of limitations based Motion to Dismiss, and those are the findings and recommendations adopted after full review. There was no finding that petitioner’s objections were late. While it is possible that the procedural background recordation on the filing of objections in the Order gave the misimpression to petitioner that his objections were late, that is simply a misreading of the Order and its ultimate conclusion. Petitioner’s Motion for Reconsideration should be denied. This findings and recommendation are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within FOURTEEN days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed within SEVEN days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: January 4, 2018 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2
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