1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEWAYNE GAGE CORDERICK, Case No. 1:24-cv-00546-HBK (HC) 12 Petitioner, ORDER TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION1 14 WARDEN, C.S.P. SOLANO, (Doc. No. 1) 15 Respondent. FOURTEEN-DAY OBJECTION PERIOD 16
17 18 Petitioner Dewayne Gage Corderick is a state prisoner proceeding pro se on his petition 19 for writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”), which was transferred by the 20 Northern District of California to this Court on May 9, 2024. (Doc. Nos. 1, 9). On June 26, 21 2024, the Court conducted a preliminary review of the Petition and determined that the Petition 22 failed to comply with Rule 2(c) of the Rules Governing Section 2254 Cases. (Doc. No. 12). 23 Specifically, the Petitioner identified the following ground for relief: “violation of petitioner [‘s] 24 6th fair trial rights” and “due process,” but failed to include any facts or additional information 25 supporting his ground(s) for relief as required under Rule 2(c) of the Rules Governing Section 26 2254 Cases. (Doc. No. 1 at 5). Petitioner also denied raising the ground on direct appeal, or in 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 any collateral state petition. (Id.). The Court afforded Petitioner an opportunity to file an 2 amended petition within thirty days and provided him with the proper form. (Doc. No. 12). On 3 July 26, 2024, the Court granted Petitioner an extension of time, and directed him to file his First 4 Amended Petition no later than August 26, 2024. (Doc. No. 14). Petitioner has not filed a First 5 Amended Petition, and the deadline to do so has passed. The Court duly warned Petitioner that if 6 he failed to file an amended petition, the undersigned would recommend that the Petition be 7 dismissed for the above reasons and/or for his failure to prosecute this action. Therefore, the 8 undersigned recommends the district court dismiss this action without prejudice. 9 I. APPPLICABLE LAW 10 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 11 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 12 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 13 (9th Cir. 2019) (citations omitted). Local Rule 110 similarly permits the court to impose 14 sanctions on a party who fails to comply with the court’s Rules or any order of the court. 15 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 16 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 17 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; and (5) the 18 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting that 19 these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis added); 20 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors and 21 independently reviewing the record because district court did not make finding as to each); but 22 see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 23 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 24 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 1983 action when plaintiff 25 did not amend caption to remove “et al” as the court directed and reiterating that an explicit 26 finding of each factor is not required by the district court). 27 II. ANALYSIS 28 The undersigned considers the above-stated factors and concludes the majority of the 1 above factors favor dismissal in this case. The expeditious resolution of litigation is deemed to be 2 in the public interest. Yourish v. California Amplifier, 191 F.2d 983, 990-91 (9th Cir. 1999). 3 Turning to the second factor, the court’s need to efficiently manage its docket cannot be 4 overstated. This court has “one of the heaviest caseloads in the nation,” and due to the delay in 5 filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, it operates 6 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 7 Emergency in the Eastern District of California. The court’s time is better spent on its other 8 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 9 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 10 requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., 11 concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition 12 where petitioner failed to timely respond to court order and noting “the weight of the docket- 13 managing factor depends upon the size and load of the docket, and those in the best position to 14 know what that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk 15 that evidence will become stale or witnesses’ memories will fade or be unavailable and can 16 prejudice a respondent. See Sibron v. New York, 392 U.S. 40, 57 (1968). 17 As to the fourth factor, a preference to rule on the merits usually weighs against dismissal 18 because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 19 (9th Cir. 2002). Here, the Petition is facially deficient. As noted in the Court’s previous Order, 20 the Petition fails to identify all the ground(s) for relief and state facts to support those ground(s) 21 for relief, on the form itself without reference to memoranda or attachments, as required under 22 Rule 2(c).2 (See generally Doc. No. 1; Doc. No. 12 at 3 (noting Petitioner may submit a separate 23 memorandum to support the petition for relief, but the court’s application form must provide all 24
25 2 As noted in the Court’s previous order, the attachments to the Petition include an assortment of possible grounds for relief not referenced on the Petition form, including (1) a pleading seemingly directed to the 26 Kern County Superior Court and the California Supreme Court captioned “Petitioner is under an unauthorized sentence from two 12022.5 enhancements CT-5 and CT-6 enhancement portion of abstract 27 judgment denied 1343 rts and denied 620 rights” signed on March 13, 2024 and (2) a “memorandum of points and authorities” outlining five “arguments” seemingly in support of that pleading, also signed on 28 March 13, 2024. (Doc. No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEWAYNE GAGE CORDERICK, Case No. 1:24-cv-00546-HBK (HC) 12 Petitioner, ORDER TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION1 14 WARDEN, C.S.P. SOLANO, (Doc. No. 1) 15 Respondent. FOURTEEN-DAY OBJECTION PERIOD 16
17 18 Petitioner Dewayne Gage Corderick is a state prisoner proceeding pro se on his petition 19 for writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”), which was transferred by the 20 Northern District of California to this Court on May 9, 2024. (Doc. Nos. 1, 9). On June 26, 21 2024, the Court conducted a preliminary review of the Petition and determined that the Petition 22 failed to comply with Rule 2(c) of the Rules Governing Section 2254 Cases. (Doc. No. 12). 23 Specifically, the Petitioner identified the following ground for relief: “violation of petitioner [‘s] 24 6th fair trial rights” and “due process,” but failed to include any facts or additional information 25 supporting his ground(s) for relief as required under Rule 2(c) of the Rules Governing Section 26 2254 Cases. (Doc. No. 1 at 5). Petitioner also denied raising the ground on direct appeal, or in 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 any collateral state petition. (Id.). The Court afforded Petitioner an opportunity to file an 2 amended petition within thirty days and provided him with the proper form. (Doc. No. 12). On 3 July 26, 2024, the Court granted Petitioner an extension of time, and directed him to file his First 4 Amended Petition no later than August 26, 2024. (Doc. No. 14). Petitioner has not filed a First 5 Amended Petition, and the deadline to do so has passed. The Court duly warned Petitioner that if 6 he failed to file an amended petition, the undersigned would recommend that the Petition be 7 dismissed for the above reasons and/or for his failure to prosecute this action. Therefore, the 8 undersigned recommends the district court dismiss this action without prejudice. 9 I. APPPLICABLE LAW 10 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 11 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 12 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 13 (9th Cir. 2019) (citations omitted). Local Rule 110 similarly permits the court to impose 14 sanctions on a party who fails to comply with the court’s Rules or any order of the court. 15 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 16 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 17 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; and (5) the 18 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting that 19 these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis added); 20 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors and 21 independently reviewing the record because district court did not make finding as to each); but 22 see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 23 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 24 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 1983 action when plaintiff 25 did not amend caption to remove “et al” as the court directed and reiterating that an explicit 26 finding of each factor is not required by the district court). 27 II. ANALYSIS 28 The undersigned considers the above-stated factors and concludes the majority of the 1 above factors favor dismissal in this case. The expeditious resolution of litigation is deemed to be 2 in the public interest. Yourish v. California Amplifier, 191 F.2d 983, 990-91 (9th Cir. 1999). 3 Turning to the second factor, the court’s need to efficiently manage its docket cannot be 4 overstated. This court has “one of the heaviest caseloads in the nation,” and due to the delay in 5 filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, it operates 6 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 7 Emergency in the Eastern District of California. The court’s time is better spent on its other 8 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 9 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 10 requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., 11 concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition 12 where petitioner failed to timely respond to court order and noting “the weight of the docket- 13 managing factor depends upon the size and load of the docket, and those in the best position to 14 know what that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk 15 that evidence will become stale or witnesses’ memories will fade or be unavailable and can 16 prejudice a respondent. See Sibron v. New York, 392 U.S. 40, 57 (1968). 17 As to the fourth factor, a preference to rule on the merits usually weighs against dismissal 18 because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 19 (9th Cir. 2002). Here, the Petition is facially deficient. As noted in the Court’s previous Order, 20 the Petition fails to identify all the ground(s) for relief and state facts to support those ground(s) 21 for relief, on the form itself without reference to memoranda or attachments, as required under 22 Rule 2(c).2 (See generally Doc. No. 1; Doc. No. 12 at 3 (noting Petitioner may submit a separate 23 memorandum to support the petition for relief, but the court’s application form must provide all 24
25 2 As noted in the Court’s previous order, the attachments to the Petition include an assortment of possible grounds for relief not referenced on the Petition form, including (1) a pleading seemingly directed to the 26 Kern County Superior Court and the California Supreme Court captioned “Petitioner is under an unauthorized sentence from two 12022.5 enhancements CT-5 and CT-6 enhancement portion of abstract 27 judgment denied 1343 rts and denied 620 rights” signed on March 13, 2024 and (2) a “memorandum of points and authorities” outlining five “arguments” seemingly in support of that pleading, also signed on 28 March 13, 2024. (Doc. No. 12 at 2 (citing Doc. No. 1 at 11-27)). 1 | grounds for relief and facts as required under Rule 2(c)). Thus, Petitioner has not presented a 2 | matter on the merits for the Court to consider. Additionally, the instant dismissal is a dismissal 3 | without prejudice, which is a lesser sanction than a dismissal with prejudice. And finally, a 4 | court’s warning to a party that failure to obey the court’s order will result in dismissal satisfies the 5 | “consideration of alternative” requirement. See Ferdik, 963 F.2d at 1262. The Court’s previous 6 | Order expressly warned Petitioner that if he failed to respond, the undersigned would recommend 7 | the district court dismiss the Petition. (Doc. No. 12 at 3, 94). Thus, Petitioner had adequate 8 | warning that dismissal would result from his noncompliance with the Court’s order. 9 After considering the factors set forth supra and binding case law, the undersigned 10 | recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110. 11 Accordingly, it is ORDERED: 12 The Clerk of Court is directed to assign a district judge to this case. 13 It is further RECOMMENDED: 14 This case be dismissed without prejudice for failure to prosecute and/or comply with a 15 || court order. 16 NOTICE TO PARTIES 17 These Findings and Recommendations will be submitted to the United States District 18 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 19 | after being served with a copy of these Findings and Recommendations, a party may file written 20 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned, 21 | “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge 22 | will review these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s 23 | failure to file objections within the specified time may result in the waiver of certain rights on 24 || appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). | Dated: _ October 1, 2024 Mihaw. Wh. foareh fackte 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE