1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICOLAS VASQUEZ, II, No. 2:21-cv-00726 WBS DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JIM ROBERTSON, 15 Respondent. 16 17 Petitioner is a former state prisoner proceeding pro se with a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Presently before the court is respondent’s motion to dismiss 19 the petition as untimely and for failure to comply with exhaustion requirements. (ECF No. 19.) 20 For the reasons stated below, the undersigned will recommend that this action be dismissed. The 21 court will also deny respondent’s motion to dismiss (ECF No. 19) as moot. 22 I. Procedural History 23 This action was initiated on April 23, 2021 when petitioner filed a petition for writ of 24 habeas corpus challenging the forfeiture of credits imposed during a disciplinary hearing. (ECF 25 No. 1.) Petitioner later filed a First Amended Petition which serves as the current operative 26 petition. (ECF No. 10.) On June 27, 2022, respondent filed the present motion to dismiss. (ECF 27 No. 19.) Petitioner did not file an opposition to that motion or any other response. On November 28 29, 2022, the court ordered petitioner to file an opposition or show cause why petitioner’s failure 1 to oppose the motion should not be deemed a waiver of opposition to the motion. (ECF No. 21.) 2 Petitioner did not file an opposition, request an extension of time, or respond to the motion or 3 court’s order in any way. 4 As the undersigned will recommend below that this action be dismissed, respondent’s 5 motion to dismiss (ECF No. 19) will be denied as moot. In the event the findings and 6 recommendations are not adopted, respondent may file a renewed motion to dismiss. 7 II. Petitioner’s Failure to Oppose Respondent’s Motion to Dismiss 8 By order dated November 29, 2022, petitioner was ordered1 to file an opposition to 9 respondent’s motion to dismiss within twenty days. (ECF No. 21.) Those twenty days have 10 passed, and petitioner has not filed an opposition, statement of non-opposition, requested 11 additional time to file an opposition or statement of non-opposition, or otherwise responded to the 12 court’s order. In light of petitioner’s failure to respond, the undersigned will recommend that this 13 action be dismissed. 14 A. Legal Standards 15 “District courts have the inherent power to control their dockets and in the exercise of that 16 power they may impose sanctions including, where appropriate, dismissal of a case.” Bautista v. 17 L.A. Cnty., 216 F.3d 837, 841 (9th Cir. 2000) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260 18 (9th Cir. 1992)). Involuntary dismissal is one of the harshest sanctions at a trial court’s disposal 19 since it denies the plaintiff his day in court, and as a result, it is reserved for use only in the most 20 extreme circumstances. Fed. R. Civ. P. 41(b); Thompson v. Housing Auth. of L.A., 782 F.2d 21 829, 831 (9th Cir. 1986). In determining whether to dismiss a claim for failure to prosecute or 22 failure to comply with a court order, the court must weigh the following factors: (1) the public’s 23 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 24 risk of prejudice to defendants; (4) the availability of less drastic alternatives; and (5) the public 25 policy favoring disposition of cases on their merits. Ferdik, 963 F.2d at 1260-61. 26
27 1 The November 29, 2022, order was sent to petitioner’s address of record and was not returned as undeliverable. Pursuant to Local Rule 182(f), service of documents at the record address of the 28 party is fully effective. 1 B. Analysis 2 1. Public’s Interest in Expeditious Resolution of Litigation 3 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 4 Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 5 This action was initiated on April 16, 2021, and has been pending since that time.2 (ECF 6 No. 1 at 6.) Petitioner filed a notice of change of address on January 3, 2022. (ECF No. 12.) 7 Since that notice was filed, petitioner has not filed anything with the court, responded to the 8 motion to dismiss which was file June 27, 2022 (ECF No. 19), or responded to court orders. 9 Petitioner’s inaction and unresponsiveness prevents litigation from proceeding forward. As such, 10 this factor favors dismissal. 11 2. Court’s Need to Manage Its Docket 12 “District courts have the inherent power to control their dockets. In the exercise of that 13 power they may impose sanctions including, where appropriate, default or dismissal.” Thompson 14 v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S. 15 626, 630 (1961)). 16 As stated above, petitioner has not participated in this action or responded to court orders 17 since January 2022. It appears that petitioner has lost interest in pursuing this petition at the 18 present time. For the court to spend further time on this action when petitioner is not responding 19 to court orders would consume scarce judicial resources on an action petitioner is no longer 20 pursuing. Accordingly, this factor weighs in favor of dismissal. 21 3. Risk of Prejudice to Defendants 22 “To prove prejudice, a defendant must establish that plaintiff’s actions impaired 23 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of the 24 case.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Malone v. U.S. Postal 25 //// 26 2 Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs 27 the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison mailbox rule); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 28 2010) (applying the mailbox rule to both state and federal filings by incarcerated inmates). 1 Service, 833 F.2d 128, 131 (9th Cir. 1987)). The “pendency of a lawsuit is not sufficiently 2 prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). 3 While prejudice to a defendant by the pendency of an action is insufficient, the Ninth 4 Circuit has held that unreasonable delay may be presumed prejudicial to the defendant. See In re 5 Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Commc'ns. Corp., 589 F.2d 959, 6 967-68 (9th Cir. 1978). Here, there has been unreasonable delay as petitioner has failed to 7 provide any response to the motion to dismiss or the court’s orders despite the fact that the motion 8 has been pending for over six months. Petitioner may rebut the presumption of prejudice by 9 providing a non-frivolous excuse for the delay. Laurino v. Syringa Gen.
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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 NICOLAS VASQUEZ, II, No. 2:21-cv-00726 WBS DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JIM ROBERTSON, 15 Respondent. 16 17 Petitioner is a former state prisoner proceeding pro se with a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Presently before the court is respondent’s motion to dismiss 19 the petition as untimely and for failure to comply with exhaustion requirements. (ECF No. 19.) 20 For the reasons stated below, the undersigned will recommend that this action be dismissed. The 21 court will also deny respondent’s motion to dismiss (ECF No. 19) as moot. 22 I. Procedural History 23 This action was initiated on April 23, 2021 when petitioner filed a petition for writ of 24 habeas corpus challenging the forfeiture of credits imposed during a disciplinary hearing. (ECF 25 No. 1.) Petitioner later filed a First Amended Petition which serves as the current operative 26 petition. (ECF No. 10.) On June 27, 2022, respondent filed the present motion to dismiss. (ECF 27 No. 19.) Petitioner did not file an opposition to that motion or any other response. On November 28 29, 2022, the court ordered petitioner to file an opposition or show cause why petitioner’s failure 1 to oppose the motion should not be deemed a waiver of opposition to the motion. (ECF No. 21.) 2 Petitioner did not file an opposition, request an extension of time, or respond to the motion or 3 court’s order in any way. 4 As the undersigned will recommend below that this action be dismissed, respondent’s 5 motion to dismiss (ECF No. 19) will be denied as moot. In the event the findings and 6 recommendations are not adopted, respondent may file a renewed motion to dismiss. 7 II. Petitioner’s Failure to Oppose Respondent’s Motion to Dismiss 8 By order dated November 29, 2022, petitioner was ordered1 to file an opposition to 9 respondent’s motion to dismiss within twenty days. (ECF No. 21.) Those twenty days have 10 passed, and petitioner has not filed an opposition, statement of non-opposition, requested 11 additional time to file an opposition or statement of non-opposition, or otherwise responded to the 12 court’s order. In light of petitioner’s failure to respond, the undersigned will recommend that this 13 action be dismissed. 14 A. Legal Standards 15 “District courts have the inherent power to control their dockets and in the exercise of that 16 power they may impose sanctions including, where appropriate, dismissal of a case.” Bautista v. 17 L.A. Cnty., 216 F.3d 837, 841 (9th Cir. 2000) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260 18 (9th Cir. 1992)). Involuntary dismissal is one of the harshest sanctions at a trial court’s disposal 19 since it denies the plaintiff his day in court, and as a result, it is reserved for use only in the most 20 extreme circumstances. Fed. R. Civ. P. 41(b); Thompson v. Housing Auth. of L.A., 782 F.2d 21 829, 831 (9th Cir. 1986). In determining whether to dismiss a claim for failure to prosecute or 22 failure to comply with a court order, the court must weigh the following factors: (1) the public’s 23 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 24 risk of prejudice to defendants; (4) the availability of less drastic alternatives; and (5) the public 25 policy favoring disposition of cases on their merits. Ferdik, 963 F.2d at 1260-61. 26
27 1 The November 29, 2022, order was sent to petitioner’s address of record and was not returned as undeliverable. Pursuant to Local Rule 182(f), service of documents at the record address of the 28 party is fully effective. 1 B. Analysis 2 1. Public’s Interest in Expeditious Resolution of Litigation 3 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 4 Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 5 This action was initiated on April 16, 2021, and has been pending since that time.2 (ECF 6 No. 1 at 6.) Petitioner filed a notice of change of address on January 3, 2022. (ECF No. 12.) 7 Since that notice was filed, petitioner has not filed anything with the court, responded to the 8 motion to dismiss which was file June 27, 2022 (ECF No. 19), or responded to court orders. 9 Petitioner’s inaction and unresponsiveness prevents litigation from proceeding forward. As such, 10 this factor favors dismissal. 11 2. Court’s Need to Manage Its Docket 12 “District courts have the inherent power to control their dockets. In the exercise of that 13 power they may impose sanctions including, where appropriate, default or dismissal.” Thompson 14 v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S. 15 626, 630 (1961)). 16 As stated above, petitioner has not participated in this action or responded to court orders 17 since January 2022. It appears that petitioner has lost interest in pursuing this petition at the 18 present time. For the court to spend further time on this action when petitioner is not responding 19 to court orders would consume scarce judicial resources on an action petitioner is no longer 20 pursuing. Accordingly, this factor weighs in favor of dismissal. 21 3. Risk of Prejudice to Defendants 22 “To prove prejudice, a defendant must establish that plaintiff’s actions impaired 23 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of the 24 case.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Malone v. U.S. Postal 25 //// 26 2 Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs 27 the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison mailbox rule); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 28 2010) (applying the mailbox rule to both state and federal filings by incarcerated inmates). 1 Service, 833 F.2d 128, 131 (9th Cir. 1987)). The “pendency of a lawsuit is not sufficiently 2 prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). 3 While prejudice to a defendant by the pendency of an action is insufficient, the Ninth 4 Circuit has held that unreasonable delay may be presumed prejudicial to the defendant. See In re 5 Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Commc'ns. Corp., 589 F.2d 959, 6 967-68 (9th Cir. 1978). Here, there has been unreasonable delay as petitioner has failed to 7 provide any response to the motion to dismiss or the court’s orders despite the fact that the motion 8 has been pending for over six months. Petitioner may rebut the presumption of prejudice by 9 providing a non-frivolous excuse for the delay. Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 10 753 (9th Cir. 2002); Pagtalunan, 291 F.3d at 642 (citing Yourish v. California Amplifier, 191 11 F.3d 983, 991 (9th Cir. 1999)). However, petitioner has not provided any excuse, whether 12 frivolous or non-frivolous, for his failure to respond to the motion or court orders. Accordingly, 13 the third factor weighs in favor of dismissal. 14 4. Availability of Less Drastic Alternatives 15 Warning a plaintiff that failure to obey a court order will result in dismissal can suffice to 16 meet the “consideration of alternatives” requirement. Malone, 833 F.2d at 132 (citing Buss v. 17 Western Airlines, Inc., 738 F.2d 1053, 1054 (9th Cir. 1984)). Petitioner was previously advised 18 that failure to respond to the court’s order would result in a recommendation that this action be 19 dismissed. (ECF No. 21 at 1.) In light of the court’s warning, this factor weighs in favor of 20 dismissal. 21 5. Public Policy Favoring Disposition of Cases on Their Merits 22 Public policy favors disposition of cases on the merits. Thus, this factor weighs against 23 dismissal. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). The undersigned 24 finds that four of the five Ferdik factors support dismissal, and thus, outweigh the general public 25 policy favoring disposition on the merits. See Ferdik, 963 F.2d at 1263. Additionally, under 26 Local Rule 230(l), petitioner’s failure to oppose the motion may be deemed a waiver of any 27 opposition to granting the motion. Accordingly, the undersigned will recommend that this action 28 be dismissed. 1 I. Conclusion 2 For the reasons set forth above, IT IS HEREBY ORDERED that respondent’s motion to 3 | dismiss (ECF No. 19) is denied without prejudice as moot. 4 Further, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to 5 || Federal Rule of Civil Procedure 41(b). 6 These findings and recommendations are submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days 8 | after being served with these findings and recommendations, any party may file written 9 | objections with the court and serve a copy on all parties. Such a document should be captioned 10 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 | objections shall be filed and served within fourteen days after service of the objections. The 12 | parties are advised that the failure to file objections within the specified time may waive the right 13 | to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 | Dated: January 24, 2023 15 16 U7 .B ORAH BARNES UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 DBD Prisoner Inbox/Habeas/R/vasq0726.dism.fr 23 24 25 26 27 28