(HC) Drone v. Federal Bureau of Prisons, No. 2:2021cv00063 - Document 9 (E.D. Cal. 2023)

Court Description: ORDER signed by Chief District Judge Kimberly J. Mueller on 01/17/23 ADOPTING 8 Findings and Recommendations in full. Petitioner's writ of habeas corpus is DISMISSED without prejudice for failure to state a claim. CASE CLOSED (Licea Chavez, V)
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(HC) Drone v. Federal Bureau of Prisons Doc. 9 Case 2:21-cv-00063-KJM-DMC Document 9 Filed 01/17/23 Page 1 of 2 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID DRONE, 11 Petitioner, ORDER 12 13 No. 2:21-CV-0063-KJM-DMC-P v. FEDERAL BUREAU OF PRISONS, 14 Respondent. 15 Petitioner, a federal prisoner proceeding pro se, brings this petition for a writ of habeas 16 17 corpus under 28 U.S.C. § 2241. The matter was referred to a United States Magistrate Judge as 18 provided by Eastern District of California local rules. 19 On November 2, 2022, the Magistrate Judge filed findings and recommendations, which 20 were served on the parties and which contained notice that the parties may file objections within 21 the time specified therein. No objections to the findings and recommendations have been filed. 22 The magistrate judge recommended dismissing plaintiff’s action after the court warned plaintiff 23 “that failure to oppose the [respondent’s] motion [to dismiss] could be construed as consent to the 24 relief requested” under Local Rule 230(c) and plaintiff did not file an opposition. F&R at 1, ECF 25 No 8. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 27 court has conducted a de novo review of this case. Local Rule 230(c) states a “failure to file a 28 timely opposition may be construed by the Court as a non-opposition to a motion” but does not 1 Dockets.Justia.com Case 2:21-cv-00063-KJM-DMC Document 9 Filed 01/17/23 Page 2 of 2 1 state a failure to respond may be construed as consent to the relief requested. E.D. Cal. L.R. 2 230(c). Courts may either dismiss complaints due to plaintiff’s non-opposition or consider the 3 complaint’s underlying merits regardless of the non-opposition. Compare Ghazali v. Moran, 4 46 F.3d 52, 54 (9th Cir. 1995) (dismissing case with prejudice due to plaintiff's non-opposition) 5 with Elec. Recyclers Int'l, Inc. v. Calbag Metals Co., No. 1:14-CV-01352, 2015 WL 1529490, at 6 *2 (E.D. Cal. Apr. 2, 2015) (“Although Calbag’s motion now faces no opposition, the court’s 7 duty remains to consider its underlying merits.”). 8 Here, this court has discretion to dismiss the case on a procedural basis due to plaintiff’s 9 non-opposition. Moreover, this court has reviewed the merits of petitioner’s petition for writ of 10 habeas corpus and finds defendant’s motion to dismiss for failing to state a claim under 28 U.S.C. 11 § 2241 should be granted without prejudice. Petitioner’s claims are not covered under 28 U.S.C. 12 § 2241, which exists to litigate claims of persons held in state custody in violation of the 13 Constitution of the United States. 14 15 16 17 18 19 20 Accordingly, IT IS HEREBY ORDERED: 1. The findings and recommendations filed November 2, 2022 (ECF No. 8), are adopted in full; 2. Petitioner’s writ of habeas corpus is dismissed without prejudice for failure to state a claim under 28 U.S.C. § 2241; and 3. The Clerk of the Court is directed to close this case. DATED: January 17, 2023. 21 22 23 24 25 26 27 28 2
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