(HC) Galafate v. Anglea ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN GALAFATE, ) Case No.: 1:19-cv-01743-DAD-JLT (HC) ) 12 Petitioner, ) FINDINGS AND RECOMMENDATION TO ) DISMISS THE PETITION FOR FAILURE TO 13 v. ) COMPLY ) 14 HUNTER ANGLEA, Warden, ) [TEN-DAY OBJECTION DEADLINE] 15 Respondent. ) ) 16 ) 17 On December 16, 2019, Petitioner filed a federal petition for writ of habeas corpus. (Doc. 1.) 18 On March 18, 2020, Respondent filed a motion to dismiss for failure to exhaust state remedies. (Doc. 19 13.) On July 2, 2020, the Court granted Respondent’s motion to dismiss and directed Petitioner to (a) 20 file an amended petition, removing the unexhausted claim; (b) file a request for dismissal of the 21 pending petition without prejudice so that he may return to state court to exhaust his state remedies; or 22 (c) move for a stay and abeyance of these federal habeas proceedings pending his exhaustion of his 23 unexhausted claim, delineating whether he is making such a motion pursuant to the decision in Rhines 24 or Kelly. (Doc. 16.) To date, Petitioner has failed to comply. Therefore, the Court will recommend the 25 action be DISMISSED. 26 DISCUSSION 27 Local Rule 110 provides that a “[f]ailure of counsel or of a party to comply with these Rules or 28 with any order of the Court may be grounds for imposition by the Court of any and all sanctions 1 inherent power to control their dockets and “in the exercise of that power, they may impose sanctions 2 including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 3 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute 4 an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 5 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 6 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 7 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal 8 for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 9 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with 10 court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of 11 prosecution and failure to comply with local rules). 12 In determining whether to dismiss an action for lack of prosecution, failure to obey a court 13 order, or failure to comply with local rules, the court must consider several factors: (1) the public’s 14 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 15 prejudice to the Respondents; (4) the public policy favoring disposition of cases on their merits; and 16 (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; 17 Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. 18 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 19 litigation and the Court’s interest in managing its docket weigh in favor of dismissal because this case 20 has been pending since December 16, 2019. The third factor, risk of prejudice to Respondent, also 21 weighs in favor of dismissal because a presumption of injury arises from any unreasonable delay in 22 prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, 23 public policy favoring disposition of cases on their merits, is greatly outweighed by the factors in 24 favor of dismissal. Finally, there are no other reasonable alternatives to dismissal considering that the 25 Petitioner has had several months to comply with the Court’s direction. 26 RECOMMENDATION 27 The Court RECOMMENDS that this action be DISMISSED for Petitioner’s failure to comply 28 with court orders and failure to prosecute. 1 This Findings and Recommendation is submitted to the assigned District Court Judge, pursuant 2 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the 3 United States District Court, Eastern District of California. Within ten days after service of the 4 Findings and Recommendation, Petitioner may file written objections with the Court. Such a 5 document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 6 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 7 Petitioner is advised that failure to file objections within the specified time may waive the right to 8 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 IT IS SO ORDERED. 11 Dated: February 9, 2021 /s/ Jennifer L. Thurston 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28