Robin Christain DiMaggio v. B. Birkholz

• Court: District Court, C.D. California
• Decided: January 10, 2023
• Docket: 2:22-cv-05223
• Status: Unknown

Opinion

Case 2:22-cv-05223-FLA-RAO Document 13 Filed 01/10/23 Page 1 of 2 Page ID #:97 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: CV 22-05223-FLA (RAO) Date: January 10, 2023 Title: Robin DiMaggio v. B. Birkholz

Present: The Honorable ROZELLA A. OLIVER, U.S. MAGISTRATE JUDGE

Donnamarie Luengo N/A Deputy Clerk Court Reporter / Recorder

Attorneys Present for Petitioner: Attorneys Present for Respondent:

N/A N/A

Proceedings: (In Chambers) ORDER TO SHOW CAUSE RE: MOOTNESS On July 28, 2022, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 2241. Dkt. No. 1. The Petition challenges the BOP’s refusal to calculate and apply First Step Act earned time credits. Respondent subsequently filed a Motion to Dismiss, arguing that (1) the Petition is largely moot in light of Petitioner’s anticipated pre-release in October 2022 to a Residential Reentry Center (RRC) and, in the alternative, (2) the Petition should be denied because Petitioner failed to exhaust his administrative remedies. Dkt. No. 7. The Court previously issued an Order to Show Cause (OSC) why the matter should not be dismissed as moot. See Dkt. No. 11. In that prior OSC, the Court noted that Petitioner had been released from BOP custody. Id. At the time of the Court’s prior OSC, Petitioner appeared to have been released to an RRC but to have still been under the supervision of BOP. A recent public check of the BOP inmate locator shows that Petitioner was released from BOP custody on January 9, 2023. See https://www.bop.gov. Based on the information on the BOP website, Petitioner is no longer in an RRC and no longer under BOP’s supervision. In light of Petitioner’s release from custody, the instant Petition appears moot because the Court cannot grant Petitioner the relief he seeks in this matter. A federal court’s jurisdiction is limited to actual cases or live controversies. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). “[F]ederal courts may not ‘give opinions upon moot questions or abstract propositions.’” Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). “[W]hen an administrative agency has performed the action sought by a plaintiff in litigation, a federal court ‘lacks the ability to grant effective relief,’ and the claim is

CV-90 (05/15) CIVIL MINUTES - GENERAL Page 1 of 2 Case 2:22-cv-05223-FLA-RAO Document 13 Filed 01/10/23 Page 2 of 2 Page ID #:98 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No.: CV 22-05223-FLA (RAO) Date: January 10, 2023 Title: Robin DiMaggio v. B. Birkholz

moot.” Rosemere Neighborhood Ass’n v. EPA, 581 F.3d 1169, 1173 (9th Cir. 2009) (quoting Pub. Util. Comm’n v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996)); see also Arthur v. Milunsic, No. CV 12-10404-DDP (CW), 2013 WL 1890335, at *1 (C.D. Cal. Mar. 22, 2013). Because Petitioner’s release appears to moot the relief he sought by initiating this action, the matter no longer involves a “live controversy.” See Farnsworth v. Tewes, Case No. EDCV 15-02407-JFW (DTB), 2016 WL 1253382, at *2 (C.D. Cal. Feb. 18, 2016) (citing Kittel v. Thomas, 620 F.3d 949, 951-52 (9th Cir. 2010) (denying petitioner’s request for a protective ruling in the event the government raises an argument adverse to petitioner’s claim at a later date because the case no longer involved a “live controversy,” rendering the petition moot)). As such, the Petition should be dismissed as moot. In light of the foregoing, IT IS ORDERED that Petitioner must show cause, in writing, on or before January 31, 2023, why this case should not be dismissed on the grounds of mootness. If Petitioner elects not to proceed in this action, he may expedite matters by signing and returning the attached Notice of Dismissal by the foregoing deadline which will result in the voluntary dismissal of this action without prejudice. Petitioner is cautioned that, absent further order of the Court, his failure to timely file a response to this order or a Notice of Dismissal may result in the dismissal of this action with or without prejudice on the grounds above or for failure to diligently prosecute.

IT IS SO ORDERED. Attachment.

: Initials of Preparer dl

CV-90 (05/15) CIVIL MINUTES - GENERAL Page 2 of 2