United States District Court, W.D. Louisiana, Lake Charles Division
JOHNNY SMITH B.O.P. #33172-034
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a Motion for Summary Judgment [doc. 25] filed by
petitioner Johnny Smith, relating to his pro se
petition for writ of habeas corpus brought pursuant to 28
U.S.C. § 2241. The government opposes the
motion. Doc. 28.
matter has been referred to the undersigned in accordance
with the provisions of 28 U.S.C. § 636. For the reasons
stated below, IT IS RECOMMENDED that the
Motion for Summary Judgment be DENIED.
relevant procedural background and summary of Smith's
claims is provided in our accompanying report and
recommendation, infra note 1. On March 19, 2018, Smith moved
for summary judgment, alleging that the government failed to
file a timely response to his petition and that he was
entitled to judgment as a matter of law on his claims. Doc.
25. The government opposes the motion, noting that its
response [doc. 27] to Smith's habeas petition was timely
under the acknowledgments of service filed in the record.
Doc. 28, att. 1; see docs. 21-23. It also maintains
that, for the reasons stated in that response, Smith is not
entitled to summary judgment and that his petition should
instead be denied and dismissed with prejudice. Doc. 28, att.
LAW & ANALYSIS
should grant a motion for summary judgment when the movant
shows “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
matter, Smith's assertion that the government failed to
file a timely response to his petition is incorrect.
Furthermore, even if that had been the case, the
government's failure to respond would not entitle Smith
to judgment as a matter of law. See Wiggins v.
Procunier, 753 F.2d 1318, 1321 (5th Cir. 1985) (citing
United States ex rel. Mattox v. Scott, 507 F.2d 919,
924 (7th Cir. 1974) (holding that default judgment is not an
appropriate remedy for state's failure to answer a habeas
petition); Gordon v. Duran, 895 F.2d 610, 612 (9th
Cir. 1990) (“The failure to respond to claims raised in
a petition for habeas corpus does not entitle the prisoner to
default judgment.”) Moreover, as we concluded in our
preceding report and recommendation [doc. 17, adopted by the
district court at doc. 24] and in the accompanying one issued
today, Smith's petition should be denied and dismissed
with prejudice because he cannot show a right to relief under
28 U.S.C. § 2241. Accordingly, his motion for summary
judgment should also be denied.
on the foregoing, IT IS RECOMMENDED that the
instant Motion for Summary Judgment [doc. 25] be
to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties have fourteen
(14) days from receipt of this Report and Recommendation to
file any objections with the Clerk of Court. Timely
objections will be considered by the district judge prior to
a final ruling.
to file written objections to the proposed factual findings
and/or the proposed legal conclusions reflected in this
Report and Recommendation within fourteen (14) days following
the date of its service shall bar an aggrieved party from
attacking either the factual findings or the legal
conclusions accepted by the District Court, except upon
grounds of plain ...