Jasper Eric Lee Jones v. Christian Pfeiffer ( 2019 )

1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JASPER ERIC LEE JONES, Case No. 2:19-cv-06341-JGB-KES 12 Petitioner, ORDER DISMISSING ACTION 13 v. WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE AND TO 14 CHRISTIAN PFEIFFER, Warden, COMPLY WITH COURT ORDERS 15 Respondent. 16 17 18 I. 19 BACKGROUND 20 On April 11, 2019, Petitioner Jasper Eric Lee Jones (“Petitioner”) 21 constructively filed an application in the Ninth Circuit for authorization to file a 22 second or successive 28 U.S.C. § 2254 habeas corpus petition in the district court. 23 (See Dkts. 1, 2.) The Ninth Circuit denied Petitioner’s application, because he “has 24 not filed a first habeas petition challenging his Los Angeles County conviction for 25 voluntary manslaughter,” and transferred the application to this Court for 26 processing as a habeas petition pursuant to 28 U.S.C. § 2254. (Dkt. 2.) The 27 operative Petition (Dkt. 1 [the “Petition”]) is the application filed before the Ninth 28 1 Circuit in April. 2 On July 29, 2019, the Court dismissed the Petition with leave to amend, 3 instructing Petitioner to include in his First Amended Petition (“FAP”) facts 4 supporting the grounds asserted in the Petition by August 27, 2019. (Dkt. 4.) 5 Having received no response from Petitioner, on September 12, 2019, the Court 6 issued an order to show cause (“OSC”) requiring Petitioner to file his FAP and 7 either file an in forma pauperis (“IFP”) application or pay the $5.00 filing fee by 8 October 1, 2019. (Dkt. 5.) Petitioner never responded. 9 II. 10 DISCUSSION 11 It is well-established that a district court may dismiss an action for failure to 12 prosecute, failure to follow court orders, or failure to comply with the federal or 13 local rules. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629- 14 30 (1962); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Local 15 Rule 41-1 provides that “[c]ivil suits which have been pending for an unreasonable 16 period of time without any action having been taken therein may, after notice, be 17 dismissed for want of prosecution.” L.R. 41-1. 18 In this case, Petitioner has failed to comply with Court orders. Because 19 Petitioner has not filed his FAP or IFP Application or $5.00 fee, Petitioner has 20 failed to comply with a Court order. (Dkt. 4.) Petitioner also failed to comply with 21 the Court’s OSC. (Dkt. 5.) In fact, Petitioner has not submitted any filing to the 22 Court in over six months, effectively abandoning this action. 23 In determining whether to dismiss a case for failure to prosecute or failure to 24 comply with court orders, a district court should consider the following five factors: 25 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 26 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 27 policy favoring disposition of cases on their merits; and (5) the availability of less 28 drastic sanctions.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 2 (9th Cir. 1987)). The test is not “mechanical,” but provides a “non-exhaustive list 3 of things” to “think about.” Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 4 (9th Cir. 1998). 5 Here, the five factors support dismissal of Petitioner’s action based on failure 6 to prosecute this case and to comply with Court orders. The first factor—the 7 public’s interest in the expeditious resolution of litigation—“always favors 8 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 9 The second factor—the Court’s need to manage its docket—also supports 10 dismissal. Petitioner’s “noncompliance has caused the action to come to a complete 11 halt, thereby allowing [him] to control the pace of the docket rather than the Court.” 12 Id. This action has been pending since April, but Petitioner has stopped 13 responding. Petitioner has disregarded two Court orders. Petitioner’s inaction 14 frustrates the public’s interest in the expeditious resolution of litigation and the 15 Court’s need to manage its docket. It is Petitioner’s responsibility to move his 16 action toward a disposition at a reasonable pace, while avoiding dilatory and 17 evasive tactics. Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). 18 The third factor—prejudice to Defendant—supports dismissal. “[T]he failure 19 to prosecute diligently is sufficient by itself to justify a dismissal, even in the 20 absence of a showing of actual prejudice to the defendant from the failure … The 21 law presumes injury from unreasonable delay.” Southwest Marine, Inc. v. Danzig, 22 217 F.3d 1128, 1138 (9th Cir. 2000) (citing Moneymaker v. CoBen (In re Eisen), 23 31 F.3d 1447, 1452 (9th Cir. 1994)). 24 The fourth factor—public policy favoring a disposition of an action on its 25 merits—weighs against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th 26 Cir. 2002). 27 The fifth factor—availability of less drastic sanctions—favors dismissal. As 28 explained above, Petitioner has effectively abandoned this action. Under these 1 | circumstances, the Court is unable to impose a lesser effective sanction. 2 Because four of five enumerated factors support dismissal, this action is 3 | dismissed pursuant to Rule 41(b) and Local Rule 41-1. Local Rule 41-2 provides, 4 | “[uJnless the Court provides otherwise, any dismissal pursuant to [Local Rule] 41-1 5 | shall be without prejudice.” L.R. 41-2. In general, a court has discretion to dismiss 6 | an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. P. 41(b); 7 | Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). Considering all of the 8 || circumstances, this action shall be dismissed in its entirety without prejudice. 9 III. 10 CONCLUSION 11 For the foregoing reasons, this action is DISMISSED WITHOUT 12 | PREJUDICE. 13 | DATED: October 30, 2019 iy] 16 ™ 7 . JESUS G. BERNAL TED STATES DISTRICT JUDGE 18 19 Presented by: 10) Hows E. Sesto KAREN E. SCOTT United States Magistrate Judge 22 23 24 25 26 27 28