(HC) Roessler v. Covello ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL LEE ROESSLER, Case No. 2:19-cv-02422-KJM-JDP (HC) 10 Petitioner, FINDINGS AND RECOMMENDATIONS 11 v. TO DISMISS PETITION FOR FAILURE TO PROSECUTE 12 PATRICK COVELLO, OBJECTIONS DUE IN FOURTEEN DAYS 13 Respondent. 14 15 16 17 Petitioner filed this habeas action on December 2, 2019. ECF No. 1. On March 20, 2020, 18 respondent filed a motion to dismiss. ECF No. 13. On April 20, 2020, after the period for 19 petitioner to file an opposition or statement of non-opposition had passed, Judge Brennan1 entered 20 an order directing petitioner to respond to the motion to dismiss within twenty-one days. ECF 21 No. 15. Petitioner then sought, and was granted, numerous extensions of time to respond. ECF 22 Nos. 16-25, 27-28. Despite being granted additional time, petitioner never responded to the 23 motion. On January 20, 2021, I entered an order directing petitioner to show cause within 24 fourteen days why this case should not be dismissed for failure to prosecute. ECF No. 29. I 25 warned petitioner that his failure to respond to my order would result in a recommendation that 26 this action be dismissed. Id. at 2. More than fourteen days have passed, and petitioner has 27 28 1This case was reassigned to me on October 1, 2020. ECF No. 26. 1 | neither responded to my order nor responded to respondent’s long pending motion to dismiss. 2 | Instead, he has filed a motion to stay this action that does not address either respondent’s motion 3 | or my show cause order. ECF No. 30. 4 I must consider the following five factors in determining whether to dismiss an action for 5 | failure to prosecute or comply with court orders: “(1) the public’s interest in expeditious 6 | resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 7 | defendants; (4) the public policy favoring disposition of cases on their merits[;] and (5) the 8 | availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (per 9 | curiam) (internal quotation marks and citation omitted). Here, all factors save the fourth weigh in 10 | favor of dismissal. Respondent’s motion to dismiss has been pending nearly a year. Petitioner 11 | has shown that he is unwilling, despite numerous extensions, to engage with that motion. He 12 | should not be permitted to ignore it. Nor should he be permitted to ignore my order directing him 13 || to show cause. 14 I recommend that this action be dismissed for failure to prosecute. 15 This recommendation will be submitted to a U.S. district judge presiding over the case 16 | under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of these 17 | findings and recommendations, petitioner may file written objections with the court. That 18 | document must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 19 | The presiding district judge will then review the findings and recommendations under 28 U.S.C. 20 | § 636(b)C1)(C). 21 IT IS SO ORDERED. 23 ( q oy — Dated: _ February 8, 2021 Q_-——_ 24 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 26 27 28