Kristopher Dillon v. David Shinn

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTOPHER IVON A. DILLON, No. 21-16181
Petitioner-Appellant, D.C. No.
2:21-cv-00290-SPL-JFM
v.
DAVID SHINN, Director; ATTORNEY MEMORANDUM*
GENERAL FOR THE STATE OF
ARIZONA,
Respondents-Appellees,
and
STATE OF ARIZONA; et al.,
Respondents.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Submitted February 6, 2023**
Phoenix, Arizona
Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Petitioner Kristopher Ivon A. Dillon, an inmate in an Arizona state
correctional facility, timely appeals the district court’s judgment dismissing his pro
se habeas petition for failure to comply with a court order and for failure to state a
claim. Pursuant to 28 U.S.C. § 2254, Petitioner filed a pro se petition for a writ of
habeas corpus, challenging his Arizona convictions. The district court identified
two defects in the petition. First, the court noted that Petitioner failed to name a
proper respondent. Second, the court noted that Petitioner “does not allege he is in
custody in violation of the Constitution or laws or treaties of the United States and
the Court lacks jurisdiction over his claims.” The district court dismissed the
petition but granted leave to amend.
Petitioner timely submitted an amended petition, but the district court still
concluded that Petitioner failed to allege that he is in custody in violation of the
Constitution or the laws or treaties of the United States. The court again dismissed
the petition with leave to amend within thirty days. Although the court mailed its
order to Petitioner’s correctional facility, the order was returned to the court as
undeliverable. Petitioner was still at the same facility and his address had not
changed, so whatever caused the return of that mail, it was not Petitioner’s fault.
Having received no further filings from Petitioner, the clerk of the district court
entered judgment dismissing the action. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and we vacate the judgment of dismissal and remand.
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1. Petitioner argues that, because the district court did not order him to file a
second amended petition, dismissal on that ground was improper under Federal
Rule of Civil Procedure 41(b).1 We review the district court’s dismissal of a
complaint pursuant to Rule 41(b) for abuse of discretion. Yourish v. Cal.
Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). But we review de novo the question
whether, under Rule 41(b), the district court’s order was a directive that required
Petitioner to amend. Id. Under Rule 41(b), “[i]f the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move to dismiss the
action or any claim against it.” Fed. R. Civ. P. 41(b). Here, the district court noted
that, “[w]ithin 30 days, Petitioner may submit a second amended petition to cure
the deficiency outlined [in the order].” (emphasis added). The order also required
the use of a court-approved form “[i]f” Petitioner chose to file a second amended
complaint, and it dismissed the petition “with leave to amend.” Thus, dismissal
was not authorized as a sanction under Rule 41(b). See Applied Underwriters, Inc.
v. Lichtenegger, 913 F.3d 884, 892 (9th Cir. 2019) (“The district court's dismissal
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The judgment does not specify that dismissal was under Rule 41(b). But it is
clear from the court’s order that the amended petition would be subject to
automatic dismissal if Petitioner failed to file a second amended petition within
thirty days, and the court cited Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th
Cir. 1992), with a parenthetical stating that the court could dismiss an action “for
failure to comply with any [court] order,” which had occurred in Ferdik. See id. at
1260 (stating that the court had “ordered” the plaintiff to refile his complaint with a
proper caption).
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under Rule 41(b) required noncompliance with a court order. A grant of leave to
amend is not an order to amend.”) (emphasis added)). In some circumstances,
“[w]hen a district court dismisses an action because the plaintiff has not filed an
amended complaint after being given leave to do so and has not notified the court
of his intention not to file an amended complaint, [the court] may deem the
dismissal to be for failure to comply with a court order based on Federal Rule of
Civil Procedure 41(b).” Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017)
(emphasis added). But even if Rule 41(b) otherwise authorized the dismissal, the
district court abused its discretion because the clerk of court knew that Petitioner
had not received the court’s latest order. As a result, judgment was entered before
Petitioner was given the opportunity to submit a second amended petition or
inform the court of his decision not to amend.2 See Edwards v. Marin Park, Inc.,
356 F.3d 1058, 1065 (9th Cir. 2004) (“Where . . . the plaintiff makes an affirmative
choice not to amend, and clearly communicates that choice to the court, there has
been no disobedience to a court’s order to amend; as Yourish itself noted, the
plaintiff has the right to stand on the pleading.” (emphasis omitted)).
2
The district court’s order also noted that, if Petitioner submitted a second
amended petition, he was required to use a court-approved habeas form. But
Petitioner did not receive that form because it was included with the mailing that
was returned as undeliverable.
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2. Petitioner also argues that the district court erred when it dismissed his
first amended petition for failing to allege a violation of the Constitution or the
laws or treaties of the United States. A federal court must “construe the pleadings
liberally and afford the petitioner the benefit of any doubt.” Boquist v. Courtney,
32 F.4th 764, 774 (9th Cir. 2022) (citation and internal quotation marks omitted).
We review de novo a dismissal for failure to state a claim upon which relief may
be granted. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011). Although the
first amended petition alleged only that Petitioner “received ineffective assistance
of counsel” at his criminal trial, a liberal construction of his pro se petition should
have led the district court to conclude that he was asserting a Sixth Amendment
claim.
VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
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