(HC) Kindred v. Superior Court of California County of Orange ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT KINDRED, ) Case No.: 1:21-cv-00532-JLT (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATION TO 14 SUPERIOR COURT OF CALIFORNIA ) DISMISS THE PETITION FOR FAILURE TO COUNTY OF ORANGE, 15 ) COMPLY ) 16 Respondent. ) [TEN-DAY OBJECTION DEADLINE] 17 On March 29, 2021, Petitioner filed a Petition for Writ of Habeas Corpus in the United States 18 District Court for the Central District of California. (Doc. 1.) The Central District transferred the 19 petition to this Court on March 31, 2021. (Doc. 3.) A preliminary screening of the petition revealed 20 that the petition failed to name the proper respondent. (Doc. 6.) Therefore, on April 7, 2021, the Court 21 dismissed the petition and granted Petitioner thirty days to file a first amended petition. (Id.) More 22 than thirty days have passed, and Petitioner has failed to comply. Therefore, the Court will recommend 23 the action be DISMISSED. 24 DISCUSSION 25 Local Rule 110 provides that a “[f]ailure of counsel or of a party to comply with these Rules or 26 with any order of the Court may be grounds for imposition by the Court of any and all sanctions 27 authorized by statute or Rule or within the inherent power of the Court.” District courts have the 28 inherent power to control their dockets and “in the exercise of that power, they may impose sanctions 1 including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 2 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute 3 an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 4 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 5 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 6 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal 7 for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 8 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with 9 court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of 10 prosecution and failure to comply with local rules). 11 In determining whether to dismiss an action for lack of prosecution, failure to obey a court 12 order, or failure to comply with local rules, the court must consider several factors: (1) the public’s 13 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 14 prejudice to the Respondents; (4) the public policy favoring disposition of cases on their merits; and 15 (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; 16 Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. 17 The Court finds that the public’s interest in expeditiously resolving this litigation and the 18 Court’s interest in managing the docket weigh in favor of dismissal because this case has been pending 19 since March 29, 2021. The third factor, risk of prejudice to Respondent, also weighs in favor of 20 dismissal because a presumption of injury arises from any unreasonable delay in prosecuting an 21 action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy 22 favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal. 23 Finally, a court’s warning to a party that failure to obey the court’s order will result in dismissal 24 satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262. The Court’s order 25 dated April 7, 2021, expressly stated: “Failure to comply with this order will result in dismissal of the 26 action.” (Doc. 6 at 2.) Thus, Petitioner had adequate warning that dismissal would result from his 27 noncompliance with the Court’s order. 28 /// 1 ORDER 2 Accordingly, the Court DIRECTS the Clerk of Court to assign a District Judge to the case. 3 RECOMMENDATION 4 The Court RECOMMENDS that this action be DISMISSED for Petitioner’s failure to comply 5 with court orders and failure to prosecute. 6 This Findings and Recommendation is submitted to the assigned District Court Judge, pursuant 7 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the 8 United States District Court, Eastern District of California. Within ten days after service of the 9 Findings and Recommendation, Petitioner may file written objections with the Court. Such a 10 document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 11 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 12 Petitioner is advised that failure to file objections within the specified time may waive the right to 13 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 IT IS SO ORDERED. 16 Dated: May 13, 2021 _ /s/ Jennifer L. Thurston 17 CHIEF UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28