(HC) Monroe v. Phieffer ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 D’ANDRE MONROE, No. 2:19-CV-2174-MCE-DMC-P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 C. PHEIFFER, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner initiated this action on October 28, 2019, 19 with a motion for a 120-day extension of time to file an operative petition. On November 25, 20 2019, the court denied petitioner’s motion and directed petitioner to file an operative petition 21 within 30 days. Petitioner was warned that failure to file a petition may result in dismissal of this 22 action for lack of prosecution and failure to comply with court rules and orders. See Local Rule 23 110. To date, petitioner has not complied.1 24 / / / 25 / / / 26 / / / 27 1 Petitioner states that he has filed a second action with an operative petition. Petitioner contends this constitutes compliance. A review of the court’s docket, however, does not reflect a second petitioner filed by 28 petitioner. 1 The court must weigh five factors before imposing the harsh sanction of 2 | dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 3 | US. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 4 | interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 5 | the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 6 | their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 7 | F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 8 || appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 9 | See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 10 | appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 11 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 12 | comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 13 1260-61 (9th Cir. 1992). 14 Having considered these factors, and in light of petitioner’s failure to file a 15 | operative petition as directed, the court finds that dismissal of this action is appropriate. 16 Based on the foregoing, the undersigned recommends that this action be 17 | dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 18 | orders. 19 These findings and recommendations are submitted to the United States District 20 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 21 | after being served with these findings and recommendations, any party may file written 22 | objections with the court. Responses to objections shall be filed within 14 days after service of 23 | objections. Failure to file objections within the specified time may waive the right to appeal. 24 | See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 | Dated: January 21, 2020 Sx