(HC) Gomez Cruz v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VICTOR MANUEL GOMEZ CRUZ, No. 2: 23-cv-0664 KJN P 12 Petitioner, 13 v. ORDER & FINDINGS & RECOMMENDATIONS 14 WARDEN, 15 Respondent. 16 17 Introduction 18 Petitioner is a federal prisoner, proceeding without counsel, with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the undersigned 20 recommends that this action be dismissed for failure to prosecute. 21 On July 3, 2023, respondent filed a motion to dismiss. (ECF No. 8.) Petitioner did not 22 file an opposition. On August 2, 2023, the undersigned granted petitioner thirty days to file an 23 opposition. (ECF No. 9.) In the August 2, 2023 order, the undersigned warned petitioner that 24 failure to file an opposition would result in a recommendation that this action be dismissed for 25 lack of prosecution. (Id.) 26 //// 27 //// 28 //// 1 The Court’s Sanction Authority 2 Local Rules and Inherent Power of Court 3 Under the Local Rules of this district, this Court has the authority to impose any 4 appropriate sanction to enforce its orders: “Failure of counsel or of a party to comply with ... any 5 order of the Court may be grounds for the imposition by the Court of any and all sanctions ... 6 within the inherent power of the Court.” L.R. 110. Individuals proceeding pro se are bound by 7 the Court’s Local Rules the same as licensed attorneys. See L.R. 183 (“Any individual 8 representing himself or herself without an attorney is bound by the Federal Rules of Civil or 9 Criminal Procedure, these Rules, and all other applicable law. All obligations placed on ‘counsel’ 10 by these Rules apply to individuals appearing in propria persona.”). 11 “District courts have inherent power to control their dockets” and in exercising that 12 power, may impose sanctions, including dismissal of an action. Thompson v. Hous. Auth., City 13 of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 14 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 15 Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with 16 a court order to amend a complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–31 (9th Cir. 17 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 18 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 19 Rule 41(b) 20 Rule 41(b) of the Federal Rules of Civil Procedure authorizes courts to dismiss an action 21 for failure to comply with a court order. Although that rule appears to contemplate that dismissal 22 will be precipitated by a motion from the opposing party, a court may act sua sponte under Rule 23 41(b). Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962); Pagtalunan v. Galaza, 291 F.3d 639, 24 640–43 (9th Cir. 2002) (affirming district court’s sua sponte dismissal of habeas petition with 25 prejudice “for failure to prosecute and failure to comply with a court order”). 26 Discussion 27 In exercising Rule 41(b), Local Rule powers, and the court’s inherent authority, the 28 undersigned recommends the dismissal of this action. In considering whether to dismiss an action 1 for failure to comply with a court order, the court must weigh five factors: “(1) the public’s 2 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 3 risk of prejudice to the defendants; (4) the availability of less drastic alternatives; and (5) the 4 public policy favoring disposition of cases on their merits.” See Pagtalunan, 291 F.3d at 642 5 (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 6 The Ninth Circuit has explained that “[t]he public’s interest in expeditious resolution of 7 litigation always favors dismissal.” Pagtalunan, 291 F.3d at 642. Here, petitioner failed to file an 8 opposition to respondent’s motion to dismiss. Petitioner’s failure to comply with this order has 9 stalled the case and prevents expeditious resolution of the case. Therefore, the first factor favors 10 dismissal. 11 The court’s need to manage its docket also weighs in favor of dismissal. The second 12 factor focuses on whether a particular case has “consumed large amounts of [a district] court’s 13 valuable time that it could have devoted to other major and serious criminal and civil cases on its 14 docket.” See Ferdik, 963 F.2d at 1261 (“It is incumbent upon us to preserve the district courts’ 15 power to manage their dockets without being subject to the endless vexatious noncompliance of 16 litigants like Ferdik.”). The undersigned has spent time reviewing the petition and issuing orders 17 regarding petitioner’s failure to respond to respondent’s motion. Thus, the factor of the court’s 18 need to manage its docket weighs in favor of dismissal. 19 The third factor—prejudice to respondent—supports dismissal. “A [respondent] suffers 20 prejudice if the [petitioner’s] actions impair the [respondent’s] ability to go to trial or threaten to 21 interfere with the rightful decision of the case.” In re Phenylpropanolamine Prods. Liab. Litig., 22 460 F.3d 1217, 1227 (9th Cir. 2006) (quoting Adriana Int'l Corp. v. Thoerren, 913 F.2d 1406, 23 1412 (9th Cir. 1990)). While the prejudice to respondent is not great, the undersigned finds that 24 petitioner’s failure to prosecute this action prejudices respondent by delaying the rightful 25 resolution of this case. 26 The fourth factor—less drastic alternatives—also weighs in favor of dismissal. Less 27 drastic alternatives, including monetary sanctions, would prolong an action petitioner is 28 apparently no longer interested in pursuing. Therefore, less drastic alternatives are not warranted. ] The fifth factor—the public policy favoring the disposition of cases on their merits— 2 | ordinarily weighs against dismissal. See In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 3 || at 1228. However, petitioner’s failure to prosecute this case prevents this case from advancing to 4 || disposition on its merits. This factor weighs only slightly against dismissal. 5 In sum, the five-factor analysis supports a recommendation for dismissal. 6 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a 7 || district judge to this action; and 8 IT IS HEREBY RECOMMENDED that this action be dismissed for failure to prosecute. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 11 || after being served with these findings and recommendations, petitioner may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 || “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 14 || he shall also address whether a certificate of appealability should issue and, if so, why and as to 15 || which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 16 || applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 17 || 2253(c)(3). Petitioner is advised that failure to file objections within the specified time may 18 || waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 19 | 1991). 20 || Dated: September 7, 2023 Aectl Aharon 22 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 23 24 25 26 7 Cruz664. fr 28