1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AARON MONTGOMERY, No. 2:15-cv-1220 KJM AC P 12 Petitioner, 13 v. ORDER and FINDINGS AND RECOMMENDATIONS 14 S.PERRY, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2245. For the reasons set forth below, the undersigned 19 recommends that the district court dismiss this action without prejudice for failure to prosecute. 20 I. Background 21 Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. 22 Petitioner was convicted by a jury of sexual intercourse by force, oral copulation by force, and 23 genital penetration with a foreign object by force. See id. at 2; see also People v. Aaron Boone 24 Montgomery, No. C067823, 2013 WL 6255704, at *1 (Cal. Ct. App. Dec. 4, 2013).1 Petitioner 25 alleges he appealed his state court case on the grounds that the judge failed to instruct the jury on 26 1 United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 27 (9th Cir. 1992) (The court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at 28 issue.”) (citation and internal quotation marks omitted)). 1 battery as a lesser charge, and that his attorney failed to request adequate jury instruction. See 2 ECF No. 1 at 2. 3 In July and August 2015, petitioner filed two motions to stay which were denied without 4 prejudice because they were not in the proper form. ECF Nos. 8, 11. In September 2015, 5 petitioner filed a third motion that was denied because petitioner failed to provide supplemental 6 information regarding exhaustion that was necessary to determine whether a stay under Kelly v. 7 Small was appropriate. ECF No, 15; see Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled 8 on other grounds, Robbins v. Carey, 481 F.3d 1143. Petitioner filed a fourth motion to stay on 9 February 16, 2016, which this court recommended the district court grant. ECF No. 35. The 10 undersigned explained that petitioner needed to exhaust any remaining state court remedies, and 11 directed petitioner to file a case status report every sixty days and inform the court within thirty 12 days of a decision by the state’s highest court exhausting his new claims. Id. at 6-7. The district 13 court adopted the findings and recommendations, and the case was administratively closed. ECF 14 No. 36. 15 Petitioner initially filed regular status reports updating his address and advising the court 16 generally that he was working on his petition. ECF Nos. 38-48. However, his final status update 17 was received on March 1, 2018. ECF No. 48. In July 2019, nearly three years after this case was 18 stayed to allow petitioner to exhaust additional claims, petitioner still had not taken steps to 19 pursue state court remedies or otherwise prosecute this case. On July 15, 2019, the court received 20 a request for court files and transcripts so petitioner could “move forward with seeking relief in 21 State or Federal US Court.” ECF No. 49. On July 18, 2019, this court denied petitioner’s request 22 and ordered petitioner to show cause as to why the stay should not be lifted and the case 23 dismissed for failure to prosecute. ECF No. 50. 24 On August 12, 2019, petitioner responded to the court’s order to show cause, and 25 described personal family circumstances that he alleged made it impossible for him to prosecute 26 his case. ECF No. 51. Specifically, he said that his mother had passed away in 2018. Id. In the 27 fourteen months since petitioner’s request that the stay not be lifted, petitioner has not filed any 28 further status reports or updates. 1 II. Discussion 2 Rule 41(b) of the Federal Rules of Civil Procedure grants federal district courts the 3 authority to sua sponte dismiss actions for failure to prosecute. See, e.g., Chambers v. NASCO, 4 Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte to dismiss a suit for 5 failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 6 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil 7 Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil 8 procedure or the court's orders); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962). This 9 court’s Local Rules are in accord. See E.D. Cal. Local Rule 110 (“Failure of counsel or of a party 10 to comply with these Rules or with any order of the Court may be grounds for imposition by the 11 Court of any and all sanctions authorized by statute or Rule or within the inherent power of the 12 Court.”); E.D. Cal. Local Rule 183(a) (providing that a pro se party’s failure to comply with the 13 Federal Rules of Civil Procedure, the court's Local Rules, and other applicable law may support, 14 among other things, dismissal of that party's action). 15 A court must weigh five factors in determining whether to dismiss a case for failure to 16 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 17 rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Specifically, the court 18 must consider: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 19 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 20 disposition of cases on their merits; and (5) the availability of less drastic alternatives. Id. at 21 1260-61; accord, Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ghazali v. Moran, 46 22 F.3d 52, 53 (9th Cir. 1995), cert. denied, 516 U.S. 838 (1995). The Ninth Circuit Court of 23 Appeals has stated that “[t]hese factors are not a series of conditions precedent before the judge 24 can do anything, but a way for a district judge to think about what to do.” In re 25 Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 26 Although involuntary dismissal can be a harsh remedy, on balance the five relevant 27 factors weigh in favor of dismissal of this action. The court, in its August 22, 2016 order and 28 findings and recommendations expressly directed petitioner to inform the court of the exhaustion 1 of his unexhausted claims. ECF No. 35. The court also directed petitioner to file status updates. 2 Id.
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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 AARON MONTGOMERY, No. 2:15-cv-1220 KJM AC P 12 Petitioner, 13 v. ORDER and FINDINGS AND RECOMMENDATIONS 14 S.PERRY, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2245. For the reasons set forth below, the undersigned 19 recommends that the district court dismiss this action without prejudice for failure to prosecute. 20 I. Background 21 Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. 22 Petitioner was convicted by a jury of sexual intercourse by force, oral copulation by force, and 23 genital penetration with a foreign object by force. See id. at 2; see also People v. Aaron Boone 24 Montgomery, No. C067823, 2013 WL 6255704, at *1 (Cal. Ct. App. Dec. 4, 2013).1 Petitioner 25 alleges he appealed his state court case on the grounds that the judge failed to instruct the jury on 26 1 United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 27 (9th Cir. 1992) (The court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at 28 issue.”) (citation and internal quotation marks omitted)). 1 battery as a lesser charge, and that his attorney failed to request adequate jury instruction. See 2 ECF No. 1 at 2. 3 In July and August 2015, petitioner filed two motions to stay which were denied without 4 prejudice because they were not in the proper form. ECF Nos. 8, 11. In September 2015, 5 petitioner filed a third motion that was denied because petitioner failed to provide supplemental 6 information regarding exhaustion that was necessary to determine whether a stay under Kelly v. 7 Small was appropriate. ECF No, 15; see Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled 8 on other grounds, Robbins v. Carey, 481 F.3d 1143. Petitioner filed a fourth motion to stay on 9 February 16, 2016, which this court recommended the district court grant. ECF No. 35. The 10 undersigned explained that petitioner needed to exhaust any remaining state court remedies, and 11 directed petitioner to file a case status report every sixty days and inform the court within thirty 12 days of a decision by the state’s highest court exhausting his new claims. Id. at 6-7. The district 13 court adopted the findings and recommendations, and the case was administratively closed. ECF 14 No. 36. 15 Petitioner initially filed regular status reports updating his address and advising the court 16 generally that he was working on his petition. ECF Nos. 38-48. However, his final status update 17 was received on March 1, 2018. ECF No. 48. In July 2019, nearly three years after this case was 18 stayed to allow petitioner to exhaust additional claims, petitioner still had not taken steps to 19 pursue state court remedies or otherwise prosecute this case. On July 15, 2019, the court received 20 a request for court files and transcripts so petitioner could “move forward with seeking relief in 21 State or Federal US Court.” ECF No. 49. On July 18, 2019, this court denied petitioner’s request 22 and ordered petitioner to show cause as to why the stay should not be lifted and the case 23 dismissed for failure to prosecute. ECF No. 50. 24 On August 12, 2019, petitioner responded to the court’s order to show cause, and 25 described personal family circumstances that he alleged made it impossible for him to prosecute 26 his case. ECF No. 51. Specifically, he said that his mother had passed away in 2018. Id. In the 27 fourteen months since petitioner’s request that the stay not be lifted, petitioner has not filed any 28 further status reports or updates. 1 II. Discussion 2 Rule 41(b) of the Federal Rules of Civil Procedure grants federal district courts the 3 authority to sua sponte dismiss actions for failure to prosecute. See, e.g., Chambers v. NASCO, 4 Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte to dismiss a suit for 5 failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 6 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil 7 Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil 8 procedure or the court's orders); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962). This 9 court’s Local Rules are in accord. See E.D. Cal. Local Rule 110 (“Failure of counsel or of a party 10 to comply with these Rules or with any order of the Court may be grounds for imposition by the 11 Court of any and all sanctions authorized by statute or Rule or within the inherent power of the 12 Court.”); E.D. Cal. Local Rule 183(a) (providing that a pro se party’s failure to comply with the 13 Federal Rules of Civil Procedure, the court's Local Rules, and other applicable law may support, 14 among other things, dismissal of that party's action). 15 A court must weigh five factors in determining whether to dismiss a case for failure to 16 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 17 rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Specifically, the court 18 must consider: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 19 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 20 disposition of cases on their merits; and (5) the availability of less drastic alternatives. Id. at 21 1260-61; accord, Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ghazali v. Moran, 46 22 F.3d 52, 53 (9th Cir. 1995), cert. denied, 516 U.S. 838 (1995). The Ninth Circuit Court of 23 Appeals has stated that “[t]hese factors are not a series of conditions precedent before the judge 24 can do anything, but a way for a district judge to think about what to do.” In re 25 Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 26 Although involuntary dismissal can be a harsh remedy, on balance the five relevant 27 factors weigh in favor of dismissal of this action. The court, in its August 22, 2016 order and 28 findings and recommendations expressly directed petitioner to inform the court of the exhaustion 1 of his unexhausted claims. ECF No. 35. The court also directed petitioner to file status updates. 2 Id. In the court’s order to show cause, the court stated that “despite petitioner’s statements to the 3 contrary, it does not appear that he has taken any steps to pursue his state court remedies or 4 otherwise prosecute this action.” ECF No. 50 at 2. The court further explained that petitioner 5 had not diligently complied with prior court orders and filed regular status updates. Failure to 6 comply with these orders places the case at a standstill and delays the court from moving the case 7 toward resolution. Moreover, petitioner’s nonaction indicates that petitioner does not intend to 8 litigate this action diligently. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) 9 (“The public’s interest in expeditious resolution of litigation always favors dismissal.”). Other 10 than a response that failed to indicate how petitioner is pursuing this action (ECF No. 51), since 11 this court’s order to show cause, petitioner has failed to file any status updates or otherwise 12 comply with the general directives of this court. Any further time spent by the court on this case, 13 which petitioner has demonstrated a lack of any serious intention to pursue, will consume scarce 14 judicial resources and take away from other active cases. See Ferdik, 963 F.2d at 1261 15 (recognizing that district courts have inherent power to manage their dockets without being 16 subject to noncompliant litigants). 17 The third factor, prejudice to respondent, also weighs in favor of dismissal. At a 18 minimum, respondent has been prevented from attempting to resolve this case on the merits by 19 petitioner’s unreasonable delay in prosecuting this action. Unreasonable delay is presumed to be 20 prejudicial. See In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d at 1227. 21 The fifth factor, the availability of less drastic sanctions, also supports dismissal. The 22 court has pursued remedies that are less drastic than a recommendation of dismissal. See Malone 23 v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987) (stating that an “explicit discussion of 24 alternatives is unnecessary if the district court actually tries alternatives before employing the 25 ultimate sanction of dismissal.”), cert. denied, 488 U.S. 819 (1988); see also Henderson v. 26 Duncan, 779 F.2d 1424 (9th Cir. 1986) (“The district court need not exhaust every sanction short 27 of dismissal before finally dismissing a case, but must explore possible and meaningful 28 alternatives.”) (citation omitted). The court has explicitly and repeatedly informed petitioner of 1 | his obligations to provide status updates and to diligently pursue this case, and petitioner has 2 || failed to comply. The court therefore concludes that sanctions other than dismissal are not 3 || appropriate. 4 The court also recognizes the importance of giving due weight to the fourth factor, which 5 || addresses the public policy favoring disposition of cases on the merits. However, for the reasons 6 || set forth above, factors one, two, three, and five strongly support a recommendation of dismissal 7 | of this action, and factor four does not trump the remaining factors. Dismissal is proper “where at 8 || least four factors support dismissal or where at least three factors ‘strongly’ support dismissal.” 9 | Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks 10 || omitted). Under the circumstances of this case, the other relevant factors outweigh the general 11 | public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at 1263. 12 Il. Conclusion 13 Accordingly, IT IS HEREBY ORDERED that the stay of this case be lifted. 14 IT IS HEREBY RECOMMENDED that petitioner’s petition for writ of habeas corpus 15 || (ECF No. 1) be dismissed without prejudice for failure to prosecute. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one days 18 || after being served with these findings and recommendations, any party may file written 19 || objections with the court and serve a copy on all parties. Such a document should be captioned 20 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 || objections shall be served and filed within fourteen days after service of the objections. The 22 || parties are advised that failure to file objections within the specified time may waive the right to 23 || appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 || DATED: October 21, 2020 ~ 25 Chien —Chare ALLISON CLAIRE 26 UNITED STATES MAGISTRATE JUDGE 27 28