(HC) White v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER DEAN WHITE, Case No. 1:21-cv-01561-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 WARDEN, [FOURTEEN DAY DEADLINE] 15 Respondent. 16 17 On October 22, 2021, Petitioner filed a petition for writ of habeas corpus in this Court. 18 Following a preliminary review of the petition, on January 12, 2022, the Court determined that the 19 petition failed to present any cognizable grounds for relief and failed to exhaust state remedies. 20 The Court issued an order dismissing the petition with leave to file an amended petition curing the 21 deficiencies. (Doc. 6.) Petitioner was granted thirty days to file an amended petition in compliance 22 with the Court’s order. Over thirty days have passed and Petitioner has failed to comply. 23 Therefore, the Court will recommend the petition be dismissed. 24 DISCUSSION 25 Local Rule 110 provides that a “[f]ailure of counsel or of a party to comply with these 26 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 27 sanctions authorized by statute or Rule or within the inherent power of the Court.” District courts 1 impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v. Housing 2 Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based 3 on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply with 4 local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53 54 (9th Cir. 1995) (dismissal for 5 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 61 (9th Cir. 1992) 6 (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 7 856 F.2d 1439, 1440 41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 8 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 9 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 10 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local 11 rules). 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 14 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 15 merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d 16 at 1260 61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423 17 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 the docket weigh in favor of dismissal because this 20 case has been pending in this Court since October 22, 2021. The third factor, risk of prejudice to 21 defendants, also weighs in favor of dismissal because a presumption of injury arises from any 22 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 23 1976). The fourth factor, public policy favoring disposition of cases on their merits, is greatly 24 outweighed by the factors in favor of dismissal. Finally, there are no less drastic alternatives. 25 Petitioner was forewarned that failure to comply with the Court’s order would result in a 26 recommendation that the petition be dismissed. 27 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign 3 a District Judge to the case. 4 RECOMMENDATION 5 Based on the foregoing, the Court HEREBY RECOMMENDS that this action be 6 DISMISSED for Petitioner's failure to comply with a court order and failure to prosecute. 7 This Findings and Recommendation is submitted to the assigned District Court Judge, 8 pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice 9 for the United States District Court, Eastern District of California. Within fourteen days after 10 service of the Findings and Recommendation, Petitioner may file written objections with the Court. 11 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 12 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 13 U.S.C. § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time 14 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 15 1991). 16 IT IS SO ORDERED. 17 18 Dated: February 15, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27