IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 6, 2013
LONNIE OLIVER, PETITIONER,
MICHAEL BABCOCK, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner, a federal prisoner, is proceeding without counsel. Petitioner filed a 71 page petition under 28 U.S.C. § 2241 raising five claims, and providing 41 pages of exhibits. (Dkt. No. 1.) Both parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On March 28, 2013, counsel for respondent filed a second request for extension of time which was required to allow the Bureau of Prisons' agency counsel ("BOP Attorney") to perform additional research, and to obtain additional documentation. (Dkt. No. 16 at 2.) On April 1, 2013, respondent's second request for extension of time was granted, and respondent was cautioned that no further extensions of time would be granted.
On April 4, 2013, petitioner filed a motion to strike respondent's second motion for extension of time, claiming he is prejudiced by the extension because his alleged wrongful housing in medium custody subjects him to harsher conditions than his appropriate minimum custody requires. (Dkt. No. 18.) Specifically, petitioner contends he is subject to being on 24 hour lock-down, and is subject to more potential of being harmed due to his placement in higher custody. Petitioner states that the request was not taken in good faith, but offers no facts to support such claim. Petitioner claims that respondent's excuse was "not a valid applicable excuse." (Dkt. No. 18 at 2.)
On May 1, 2013, respondent filed a third motion for extension of time. New counsel for respondent filed the request, noting that previously assigned counsel is out of the office on extended medical leave, and new counsel was only made aware of the May 1, 2013 deadline on that very day. (Dkt. No. 20 at 2.) New counsel confirms that the BOP Attorney has provided information to assist in the preparation of the response, but that new counsel has not had an opportunity to review all of the information, or to conduct the additional research needed to prepare the final response. Respondent seeks a brief ten day extension of time, until May 11, 2013, in which to file the response. Respondent contends petitioner has a projected release date of January 8, 2018, and will not be prejudiced by the late response. (Id.)
The court finds that respondent demonstrated good cause for both the second and third requests for extension of time to file the responsive pleading. The record reflects no bad faith on the part of respondent's counsel.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's motion to strike (dkt. no. 18) is denied;
2. Respondent's motion for extension of time (dkt. no. 20) is granted;
3. Respondent shall file a response to the § 2241 petition on or before May 11, 2013; and
4. Petitioner's traverse is due thirty days thereafter.
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