Buckelew v. Gore

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DION SCOTT BUCKELEW, Case No. 20-cv-0835-BAS-AGS

12 Petitioner, ORDER DENYING AND 13 v. DISMISSING WITH PREJUDICE PETITION FOR WRIT OF HABEAS 14 SHERIFF WILLIAMS D. GORE, et al., CORPUS (ECF No. 1) 15 Respondents.

16 17 18 On May 1, 2020, Petitioner Dion Scott Buckelew, proceeding pro se, filed a Petition 19 for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Pet., ECF No. 1.) On May 19, 2020, 20 the Court dismissed the Petition without prejudice and with leave to amend, finding that 21 Petitioner had not paid the $5.00 filing fee nor moved to proceed in forma pauperis (IFP) 22 and that the Petition did not state a cognizable claim for relief. (Order, ECF No. 2.) 23 More than a month later, on June 24, 2020, Petitioner moved for leave to proceed 24 IFP. (IFP Mot., ECF No. 3.) On July 8, 2020, the Court denied Petitioner’s request to 25 proceed IFP, finding that Petitioner’s trust account statement showed he could afford the 26 $5.00 filing fee. (Order, ECF No. 4.) In the same Order, the Court ordered Petitioner to 27 (1) pay the filing fee and (2) amend his petition by August 28, 2020. (Id.) Petitioner did 28 neither. 1 On September 30, 2020, United States Magistrate Judge Andrew G. Schopler 2 ordered Petitioner to show cause, by October 30, 2020, why this case should not be 3 dismissed as a sanction for his failure to follow the Court’s Order. The date came and 4 passed without Petitioner’s response. 5 A district court may dismiss a petitioner’s action for his failure to prosecute or failure 6 to comply with court orders. See Fed. R. Civ. P. 41(b); Pagtalunan v. Galaza, 291 F.3d 7 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding 8 that a district court may dismiss an action for failure to comply with any order of the court). 9 “Dismissals under Rule 41(b) . . . operate as adjudications on the merits unless the court 10 specifies otherwise.” Costello v. United States, 365 U.S. 265, 285 (1961). 11 Before dismissing the action under Rule 41(b), the court must consider: 12 (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 defendants/respondents; 13 (4) the availability of less drastic alternatives; and (5) the public policy 14 favoring disposition of cases on their merits. 15 Pagtalunan, 291 F.3d at 642. Here, the first and second factors favor dismissal because 16 more than four months have passed from the time the Court first notified Petitioner of the 17 procedural and substantive defects in his action, yet he has not filed a filing fee nor 18 amended his petition. The fourth factor also favors dismissal. The Court has attempted a 19 less drastic sanction by ordering Petitioner to pay the filing fee and amend his defective 20 petition. When he did not do so, the Court again sought a less drastic sanction by ordering 21 him to show cause why his action should avoid dismissal. See Ferdik, 963 F.2d at 1262 22 (holding that “a district court’s warning to a party that his failure to obey the court’s order 23 will result in dismissal can satisfy the ‘consideration of alternatives’ requirement”). 24 Because Petitioner has neither complied with this Court’s Order to file an amended petition 25 nor responded to Magistrate Judge Scholpler’s Order to Show Cause, the Court finds that 26 more attempts of less drastic alternatives would be futile. The third factor is neutral, at this 27 early stage of the litigation. Cf. Ferdik, 963 F.2d at 1262 (“Without knowing who the 28 defendants are . . . [the court is] hard pressed to determine how [the petitioner’s] failure to 1 ||amend put them at a disadvantage.) The fifth factor weighs against dismissal, but that 2 ||factor is outweighed by the first, second, and fourth factors, which all weigh heavily in 3 || favor of dismissal. 4 Dismissal of Mr. Buckelew’s Petition is warranted for his repeated failures to 5 ||comply with court orders. Therefore, the Court DENIES and DISMISSES his Petition 6 || with prejudice. 7 8 IT IS SO ORDERED. 9 / , 10 || DATED: November 12, 2020 Lin A (Lyohaa 6 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28