Bernal v. Barr

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

No. CV-20-01164-PHX-MTL (CDB) 9 Omar Dimas Bernal,

10 Petitioner, ORDER v. 11 12 William P. Barr, et al., 13 Respondents. 14

15 On June 11, 2020, Petitioner Omar Dimas Bernal (A# 202-014-943), who is 16 detained in CoreCivic La Palma Correctional Center (“LPCC”) in Eloy, Arizona, filed, 17 through counsel, a Petition for Writ of Habeas Corpus and Complaint for Declaratory and 18 Injunctive Relief (Doc. 1) and a Motion for Preliminary Injunction and/or Temporary 19 Restraining Order (Doc. 2), seeking his release due to the potential risks to his health if he 20 were to contract COVID-19 in LPCC. In a June 19, 2020 Order (Doc. 6), the Court denied 21 the Motion but, finding the circumstances alleged warranted accelerated consideration, set 22 expedited briefing deadlines for the Petition. 23 On July 2, 2020, Respondents filed an Answer to the Petition arguing, among other 24 things: (1) Petitioner’s claims are not cognizable under 28 U.S.C. § 2241; (2) Petitioner’s 25 release is not an appropriate remedy for his claims; (3) Petitioner’s allegations are 26 insufficient to support his claims that his detention violates due process; and (4) a habeas 27 corpus petition is not the proper vehicle for a claim under the Administrative Procedure 28 Act. (Doc. 13.) The deadline for Petitioner to file a Reply in support of his Petition was 1 July 9, 2020. To date, no such reply has been filed, nor has Petitioner taken any other 2 action in this case. 3 Rule 41(b) of the Federal Rules of Civil Procedure provides that if a “plaintiff fails 4 to prosecute or to comply with the[] rules or a court order, a defendant may move to dismiss 5 the action or any claim against it.”1 The district court also has the inherent power to dismiss 6 a case sua sponte for failure to prosecute, for failure to comply with court orders, or for 7 failure to follow the local rules. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 8 (1962) (recognizing that even though the language of Rule 41(b) requires a motion, the 9 district court has sua sponte authority to dismiss for failure to prosecute); Ghazali v. Moran, 10 46 F.3d 52, 53 (9th Cir. 1995) (failure to comply with local rules is a proper ground for 11 dismissal); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (a district court may 12 dismiss an action for failure to comply with an order of the court); Wanderer v. Johnson, 13 910 F.2d 652, 656 (9th Cir. 1990). In determining whether Petitioner’s failure to prosecute 14 warrants dismissal pursuant to Rule 41(b), the Court weighs “(1) the public’s interest in 15 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 16 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 17 merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 18 1440 (1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). 19 Having considered the five factors here, the Court concludes that dismissal is 20 warranted. Petitioner’s failure to file a Reply despite the arguments raised by Respondents 21 in their Answer, shows that Petitioner has lost interest in prosecuting, and has abandoned 22 this case. While public policy favors disposition of cases on their merits, proceeding 23 without a Reply from Petitioner would needlessly consume judicial resources and prolong 24 the resolution of this action. Dismissal will not prejudice Respondents, and the less drastic 25

26 1 “To the extent they are not inconsistent” with the governing statutes and rules, the Federal Rules of Civil Procedure apply to habeas corpus proceedings. Rule 12, foll. 27 28 U.S.C. § 2254; see also Rule 1(b), foll. 28 U.S.C. § 2254 (the Rules Governing Section 2254 Cases in the United States District Courts apply to § 2241 habeas corpus 28 proceedings). 1 | alternative of dismissal without prejudice is available and appropriate in this instance. The Petition and this action will therefore be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 4) ITIS ORDERED: 5 (1) Petitioner’s Petition for Writ of Habeas Corpus and Complaint for 6| Declaratory and Injunctive Relief (Doc. 1) and this action are dismissed without prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 8 (2) The Clerk of Court shall enter judgment accordingly and terminate this case. 9 Dated this 24th day of July, 2020. 10 Wichak T. gihuade Michael T. Liburdi 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-