Michael Gibbs v. Anthony Hedgpeth

FILED
NOT FOR PUBLICATION JUL 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL OLIVER GIBBS, aka Julio No. 08-55472
Olivia Gealmoa,
D.C. No. 5:06-cv-01227-GPS-E
Petitioner - Appellant,
v. MEMORANDUM*
A. HEDGPETH, Warden, Salinas Valley
State Prison and MATTHEW CATE,
Secretary of the California Department of
Corrections and Rehabilitation,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Submitted July 16, 2010**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: FARRIS and SILVERMAN, Circuit Judges, and ROBART, District
Judge.***
Michael Gibbs, currently in state custody in California, appeals the district
court’s denial and dismissal of his Petition for habeas corpus. The court dismissed
his pro se Petition because he had not filed a Reply on time. He argues that the
district court erred in doing so. We agree.
The first issue is whether we have jurisdiction based on a properly filed
notice of appeal. We do. Gibbs’ August 30, 2007 filing1 was both a motion for
leave to file a late notice of appeal, and a properly filed notice of appeal.2 See
Andrade v. Attorney General, 270 F.3d 743, 752 (9th Cir. 2001), rev’d on other
grounds, 538 U.S. 63 (2003). Gibbs specified who was taking the appeal,
designated the judgment being appealed from, asked for a Certificate of
Appealability, and specifically wrote on the Proof of Service by Mail that his filing
constituted a “Notice of Appeal.” The district court correctly granted the filing’s
***
The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
1
A notice of appeal by an inmate confined in an institution is considered
filed when deposited in the institution’s internal mail system with proper postage.
FED. R. CIV. P. 4(c)(1); Andrade v. Attorney General, 270 F.3d 743, 751 n.6 (9th
Cir. 2001), rev’d on other grounds, 538 U.S. 63 (2003).
2
For some unknown reason, this document was not entered into the district
court docket sheet until August 6, 2009. It is now listed as Docket #39.
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motion pursuant to Federal Rule of Appellate Procedure 4(a)(6), but failed to
recognize the filing as a simultaneous notice of appeal. See id.; Smith v. Barry,
502 U.S. 244 (1992). Hedgpeth’s opposing argument is that Gibbs did not serve a
copy of the August 30 filing on Hedgpeth. But as Hedgpeth had adequate notice of
the filing and did not oppose it, “failure to file a noticed motion under Rule 4(a)(6)
should not constitute an independent ground for barring” the claim. Nunley v. City
of Los Angeles, 52 F.3d 792, 795 (9th Cir. 1995). As Gibbs’ August 30 filing
included a notice of appeal, we have jurisdiction to hear this case.
Gibbs next argues that the district court erred in dismissing his Petition for
failure to prosecute under Federal Rule of Civil Procedure 41(b). He argues that
there was no need for a Reply, there was no unreasonable delay in his failure to file
a Reply, the court failed to consider less drastic remedies before dismissing the
case, and less drastic remedies were particularly apt given his well-documented
problems receiving mail in prison. Hedgpeth argues that the dismissal was proper
because the court had made the Reply mandatory, Gibbs’ claim was not exhausted
or properly articulated, Gibbs should have known he would have problems
receiving mail, and Hedgpeth was prejudiced by Gibbs’ failure to file a Reply.
We generally review for an abuse of discretion Rule 41(b) dismissals for
failure to prosecute, but “[i]f the magistrate judge did not engage in the preferred
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practice of explicitly addressing the relevant factors when contemplating
dismissal,” as in this case, we “may review the record independently to determine
if the district court abused its discretion.” Pagtalunan v. Galaza, 291 F.3d 639,
640-41 (9th Cir. 2002).
It is well established that since Rule 41(b) dismissals “may severely punish a
party not responsible for the alleged dereliction, the rule should only be invoked in
extreme circumstances.” Indus. Bldg. Materials, Inc. v. Interchem. Corp., 437
F.2d 1336, 1338-39 (9th Cir. 1970). “A Rule 41(b) dismissal ‘must be supported
by a showing of unreasonable delay.’” Omstead v. Dell, Inc., 594 F.3d 1081, 1084
(9th Cir. 2010) (citing Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986)). “[A]ggravated circumstances may make dismissal under 41(b)
appropriate,” but prior to Rule 41(b) dismissal, the district court must reasonably
explore “possible and meaningful alternatives” to dismissal. Von Poppenheim v.
Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1049, 1053-54 (9th Cir.
1971). “In addition, the district court must weigh the following factors in
determining whether a Rule 41(b) dismissal is warranted: ‘(1) the public’s interest
in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3)
the risk of prejudice to the defendants; (4) the public policy favoring disposition of
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cases on their merits and (5) the availability of less drastic sanctions.’” Omstead,
594 F.3d at 1084 (citing Henderson, 779 F.2d at 1423).
In dismissing the case, the district court failed to conduct any analysis
beyond determining that a Reply was overdue. The case was less than five months
old and the Reply less than two months overdue. The docket demonstrated that
mail to Gibbs had already been returned as undeliverable. On our independent
review, we conclude that although there was delay, there was no unreasonable
delay. See Raiford v. Pounds, 640 F.2d 944, 945 (9th Cir. 1981).
The district court also failed to consider, as it must, less drastic alternatives
to dismissal. On our independent review and without the benefit of specific
findings by the district court, we are persuaded that there were possible and
meaningful alternatives to dismissal that should have been reasonably explored by
the court. Von Poppenheim, 442 F.2d at 1054. The court could have reminded
Gibbs, proceeding pro se, of his duty to file the then non-optional Reply, or warned
him of the possibility of dismissal. Seeing in the docket sheet that mail had already
been returned as undeliverable, the court could also have waited to see if its
previous mailings would come back undeliverable (as many later did), or worked
with the clerk to remedy the problems sending Gibbs his mail. Though the court
was not obliged to exhaust every possible alternative, the court should have, in the
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exercise of its discretion, considered which alternatives were reasonably
appropriate and explored them, “bearing in mind the drastic foreclosure of rights
that dismissal effects.” Id.As there was no unreasonable delay and the district court failed to explore
less drastic alternatives, we conclude, after our independent review, that it was an
abuse of discretion to deny Gibbs’ Petition and dismiss his case. At the same time
as the district court was processing the dismissal, Gibbs sent in an Amended
Petition with apparently exhausted claims, a motion for more time to file his Reply,
and a request for a stay and abeyance. On remand, after Gibbs is given an
opportunity to submit such documents, the district court will consider these issues.
The denial of Gibbs’ Petition and the dismissal of his case are REVERSED,
and the case REMANDED for further proceedings.
REVERSED and REMANDED.
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