Robinson v. FCI Berlin, Warden

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Zhivago Robinson
v. 	Civil No. 18-cv-287-JL
Robert Hazlewood, Warden, FCI Berlin
REPORT AND RECOMMENDAITON
Zhivago Robinson, an inmate at the Federal Correctional
Institution, Berlin, New Hampshire (“FCI-Berlin”), has filed a
petition for a writ of habeas corpus (Doc. No. 1) pursuant to 28
U.S.C. § 2241. 	Before the court for a Report and Recommendation
is Robinson’s motion (Doc. No. 15) seeking judgment in
petitioner’s favor on the basis that the respondent to this
action failed to timely respond to the petition.1
Background
On October 26, 2018, the undersigned magistrate judge
directed that Robinson’s petition be served on the respondent,
the United States Attorney for the District of New Hampshire
(“USAO-NH”), and the Attorney General. 	See Oct. 26, 2018 Order
1Petitioner entitled Document No. 15, “Motion for Summary
Judgment.” 	Because the motion seeks judgment on the basis that
the respondent defaulted by failing to file a timely response to
the petition, the court has construed the motion as one for
default judgment. 	See Aug. 7, 2019 Order.
Case 1:18-cv-00287-JL Document 21 Filed 08/09/19 Page 1 of 4

2
(Doc. No. 3), at 1-2. 	The court further ordered the respondent
to file an answer or motion to dismiss within sixty days of the
date of service of the petition upon the USAO-NH. 	See id.
The USAO-NH was served on October 30, 2018. 	See Oct. 30,
2018 U.S. Dep’t of Justice Process Receipt and Return (Doc. No.
5). 	Accordingly, the respondent’s answer or motion to dismiss
the petition was due on December 31, 2018.2 	Prior to that date,
on December 21, 2018, the respondent moved for an additional
twenty-one days to file his response to the petition. 	See Dec.
21, 2018 Resp’t’s Mot. for Extension of Time to Answer (Doc. No.
13). 	On January 25, 2019, before the court ruled on the
respondent’s motion for an extension, the respondent filed a
motion to dismiss (Doc. No. 14). 	On February 15, 2019, the
court granted the respondent’s motion to extend the filing
deadline.
Discussion
Rule 55(a) of the Federal Rules of Civil Procedure provides
that “[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and
the failure is shown by affidavit or otherwise, the clerk must
2December 29, 2018 fell on a Saturday, and thus the answer
or response was due on December 31, 2018. 	See Fed. R. Civ. P.
6(a)(1)(C).
Case 1:18-cv-00287-JL Document 21 Filed 08/09/19 Page 2 of 4

3
enter the party’s default.” 	Fed. R. Civ. P. 55(a). 	A party may
be permitted to avoid default “by taking any act that ‘show[s]
an intent to defend.’” 	Tabari v. Kane, No. CV-10-2419-PHX-DGC
(LOA), 2011 U.S. Dist. LEXIS 69051, at *3, 2011 WL 2533512, at
*1 (D. Ariz. Apr. 26, 2011) (citations omitted).
Here, the respondent filed an appearance in this case the
day after the USAO-NH was served, and filed a motion to dismiss
which, while arguably late, demonstrates an intent to defend
this action. 	The petitioner has not demonstrated any prejudice
resulting from the short delay in the respondent’s filing of his
motion to amend. 	Further, the entry of default or default
judgment in this case would be inconsistent with the court’s
general preference that disputes be resolved on their merits.
Cf. generally, Coon v. Grenier, 867 F.2d 73, 76 (1st Cir. 1989)
(“Allowing an entry of default to be set aside on a showing of
reasonable justification is in keeping both with the philosophy
that actions should ordinarily be resolved on their merits.”)
(citations omitted). 	Accordingly, the district judge should
deny petitioner’s motion (Doc. No. 15).
Conclusion
For the foregoing reasons, the district judge should deny
Robinson’s motion for default judgment (Doc. No. 15). 	Any
objection to this Report and Recommendation must be filed within
Case 1:18-cv-00287-JL Document 21 Filed 08/09/19 Page 3 of 4

4
14 days of receipt of this notice. 	See Fed. R. Civ. P.
72(b)(2). 	The 14-day period may be extended upon motion.
Failure to file a specific written objection to the Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
August 9, 2019
cc: 	Zhivago Robinson, pro se
Seth R. Aframe, Esq.
Case 1:18-cv-00287-JL Document 21 Filed 08/09/19 Page 4 of 4