The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING PETITIONER'S
REQUEST FOR AN EXTENSION OF TIME TO FILE OBJECTIONS TO
FINDINGS AND RECOMMENDATIONS (DOCS. 60, 55)
DEADLINE FOR FILING OBJECTIONS TO
FINDINGS AND RECOMMENDATIONS TO
DENY THE PETITION:
THIRTY (30) DAYS AFTER SERVICE OF
THIS ORDER FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER'S REQUEST FOR INJUNCTIVE RELIEF (DOC. 60) DEADLINE FOR
FILING OBJECTIONS TO FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER'S
MOTION FOR INJUNCTIVE RELIEF: THIRTY (30) DAYS AFTER SERVICE OF THIS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court are 1) Petitioner's motion for an extension of time to file objections to findings and recommendations to deny the petition which were filed on March 28, 2011; and 2) Petitioner's motion for injunctive relief in the form of an order compelling the Respondent to return Petitioner's property. The motions were filed on July 1, 2011.
I. Order Granting the Request for an Extension of Time On March 28, 2011, the Magistrate Judge filed findings and recommendations to deny the petition for writ of habeas corpus on the merits. The claims included vindictive prosecution, violation of the right to a speedy trial, and the sufficiency of the evidence to establish that the victim experienced sustained fear and that the threat was unconditional under the circumstances. The findings and recommendations were served by mail on Petitioner on the same date and informed Petitioner that objections were due within thirty days.
In April 2011, Petitioner was granted thirty additional days to file objections because of serious illness with hospitalization that commenced in December 2010 and resulted in Petitioner's return to custody to be housed in the prison infirmary on March 25, 2011. In March, Petitioner was learning to walk; in April, he requested the return of his property but did not receive it.
On June 2, 2011, Petitioner was again granted an additional thirty days to file objections because he was released from the prison infirmary on or about May 24, 2011, and was awaiting placement back in the general population in order to be eligible for access to the law library. Petitioner had not received his property despite numerous requests.
On July 1, 2011, Petitioner filed his third request for an extension of time to file objections to the findings and recommendations concerning the merits of his petition. Petitioner stated that he had been served with a copy of the findings and recommendations. Petitioner stated that he had sought the return of his "legal matter" so that he could file objections, and he filed numerous inmate appeals after he did not receive his property. Petitioner asserts that without the property, he cannot respond to the moving pleadings.
The Court notes that it is not pleadings to which Petitioner seeks to respond, but rather the Magistrate Judge's findings and recommendations to deny the petition. The Respondent filed an answer to the petition, and Petitioner filed a traverse. Thus, the issues were fully briefed before the Magistrate Judge prepared findings and recommendations. Therefore, Petitioner is not faced with preparing his case before this Court in the first instance. Instead, he has an opportunity to provide final input with respect to the recommended disposition in his case.
Petitioner has not shown how his property is necessary for filing objections to the findings and recommendations. Petitioner offers only a conclusion that without "said property petitioner can in no way respond" to the moving pleadings. (Mot. 2.) It does not appear that Petitioner is suffering any limitation of access to the law library or other condition of confinement that would prevent filing objections.
Therefore, it does not appear that Petitioner's lack of access to his property is good cause for an extension of time. However, because of Petitioner's history of illness, the Court will grant to Petitioner one final extension of time to file objections to the findings and recommendations. Petitioner is forewarned that the Court will not grant further extensions without an affirmative showing of good cause based on specific facts.
Accordingly, it is ORDERED that Petitioner's motion for an extension of time is GRANTED, and Petitioner may file objections to the findings and recommendations to deny the petition no later than thirty (30) days after the date of service of this order.
II. Findings and Recommendations Regarding Petitioner's
Request for Injunctive Relief
Petitioner requests that the Court compel the warden and custodial staff to return his property.
After reading the motion in its entirety, the Court concludes that it is clear that Petitioner is challenging the conditions of his confinement, not ...