Luis Brayan Garcia Ontiveros v. Warden FCC Lompoc

• Court: District Court, C.D. California
• Decided: November 19, 2024
• Docket: 2:23-cv-09562
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LUIS BRAYAN GARCIA Case No. 2:23-cv-09562-JLS (MAA) ONTIVEROS, 12 ORDER OF DISMISSAL 13 Petitioner, v. 14 WARDEN FCC LOMPOC, 15 16 Respondent. 1 17 8

19 I. SUMMARY OF PROCEEDINGS 20 On November 2, 2023, Petitioner Luis Brayan Garcia Ontoveros (or 21 “Ontiveros”) signed a “Motion Pursuant to U.S.C. § 2241 Seeking Application of 22 Earned Federal Time Credits Through the First Step Act (F.S.A.)” (“Petition”). 23 (Pet., ECF No. 1.) After the Petition was received and filed by this Court, the Clerk 24 of Court issued a notice to Petitioner informing him that he was required either to 25 pay the $5.00 filing fee or to submit a Request to Proceed without Prepayment of 26 Filing Fees with Declaration in Support. (ECF No. 2.) On July 29, 2024, the Court 27 issued an order instructing the Clerk to mark the filing fee in this case as “paid.” 28 (ECF. No. 6.) 1 The Petition raised just one claim: that credits earned by Petitioner under the 2 First Step Act (“FSA”) had not been applied properly by the Bureau of Prisons 3 (“BOP”). (Pet. 1-2.) The Petition alleged that Petitioner had a tentative release date 4 of November 14, 2024, but had earned 60 days toward early release that had not 5 been applied. (Id. at 2.) The only relief sought was that a new release date be 6 calculated, taking into account the credits Petitioner had earned under the FSA. (Id. 7 at 3.) If Petitioner had prevailed on this claim, he might have been released from 8 custody in approximately mid-September 2024. 9 As events unfolded, however, Petitioner appears to have been released from 10 BOP custody even earlier. According to the BOP’s online “Inmate Locator” 11 (available at https://www.bop.gov/inmateloc/), Petitioner was released from custody 12 on July 31, 2024.1 On August 1, 2024, the Court therefore issued an Order to Show 13 Cause, no later than September 3, 2024, why this action should not be dismissed for 14 mootness. (ECF No. 7.) The Court “cautioned that failure to respond to this 15 Order may result in dismissal of the Petition without prejudice for failure to 16 prosecute and/or failure to comply with a court order pursuant to Federal 17 Rule of Civil Procedure 41(b). See C.D. Cal. L.R. 41-1.” (Id.) 18 On August 8, 2024, the Court’s July 29 and August 1, 2024 Orders were 19 returned as undeliverable. (ECF Nos. 8–9.) Not surprisingly, no response to the 20 Order to Show Cause was received by the September 4, 2024 deadline. The Court 21 therefore issued, on September 27, 2024, an Order to Show Cause why this action 22 should not be dismissed for lack of prosecution. (ECF No. 10.) The Court again 23 “cautioned that failure to respond to this Order may result in dismissal of the 24 Petition without prejudice for failure to prosecute and/or failure to comply 25 26 27 1 The Court takes judicial notice of the information contained on the BOP inmate locator website. See United States v. Basher, 629 F.3d 1161, 1165 n.2 (9th Cir. 2011) 28 (taking judicial notice of the BOP inmate locator that is available to the public). 1 with a court order pursuant to Federal Rule of Civil Procedure 41(b). See C.D. 2 Cal. L.R. 41-1.” (Id.) 3 On October 9, 2024, the Court’s September 27, 2024 Order was returned as 4 undeliverable. (ECF No. 11.) To date—again, not surprisingly—Petitioner has 5 failed to respond. Petitioner also has failed to update his address with the Court as 6 required by Local Rule 41-6, which states: 7 A party proceeding pro se must keep the Court and all 8 other parties informed of the party’s current address as 9 well as any telephone number and email address. If a 10 Court order or other mail served on a pro se plaintiff at 11 his address of record is returned by the Postal Service as 12 undeliverable and the pro se party has not filed a notice 13 of change of address within 14 days of the service date of 14 the order or other Court document, the Court may 15 dismiss the action with or without prejudice for failure to 16 prosecute. 17 C.D. Cal. L.R. 41-6. 18 19 II. LEGAL STANDARD 20 District courts may dismiss cases sua sponte for failure to prosecute or for 21 failure to comply with a court order under Federal Rule of Civil Procedure (“Rule”) 22 41(b). Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 23 2005); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that 24 the court has “inherent power” to dismiss cases sua sponte for lack of prosecution); 25 Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (upholding district court’s 26 dismissal of habeas petition for failure to prosecute under Rule 41(b)). Unless the 27 Court states otherwise, a dismissal under Rule 41(b) operates as an adjudication on 28 the merits. Fed. R. Civ. P. 41(b). 1 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 2 delay.’” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting 3 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)), overruled on other 4 grounds by Langere v. Verizon Wireless Servs., LLC, 983 F.3d 1115, 1117 (9th Cir. 5 2020). In addition, the court must weigh the following factors in determining 6 whether a Rule 41(b) dismissal is warranted: “(1) the public’s interest in 7 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 8 the risk of prejudice to the defendants/respondents; (4) the availability of less 9 drastic alternatives; and (5) the public policy favoring disposition of cases on their 10 merits.” Pagtalunan, 291 F.3d at 642. The Ninth Circuit will “affirm a dismissal 11 where at least four factors support dismissal, or where at least three factors strongly 12 support dismissal.” Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) 13 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). 14 15 III. DISCUSSION 16 A. The Public’s Interest in Expeditious Resolution and the Court’s 17 Need to Manage Its Docket 18 The first and second factors (the public’s interest in expeditious resolution of 19 litigation and the Court’s need to manage its docket)2 weigh in favor of dismissal. 20 “Orderly and expeditious resolution of disputes is of great importance to the rule of 21 law.” In re: Phenylpropanolamine, 460 F.3d at 1227. “The public’s interest in 22 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 23 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 24 inherent power to control their dockets,” In re: Phenylpropanolamine, 460 F.3d at 25 1227 (quoting Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986)), 26 and “are best suited to determine when delay in a particular case interferes with 27 2 The first two factors usually are reviewed together “to determine if there is an 28 unreasonable delay.” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994). 1 docket management and the public interest.” Yourish, 191 F.3d at 990 (quoting Ash 2 v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 3 It appears that Petitioner was relatively attentive to this case when he was in 4 custody. (See ECF Nos. 4–5.) Since his release from custody on July 31, 2024, 5 however, his efforts to prosecute this matter have ended. This is understandable, 6 both because Petitioner has already effectively obtained all relief that he sought in 7 his Petition and because he has not received the Court’s orders directing him to 8 respond. Nonetheless, the Court has a pending case and an obligation to resolve 9 this open matter, and Petitioner has both failed to comply with court orders for three 10 months and failed to update his address as required by the Court’s Local Rules. 11 The Court therefore concludes that Petitioner’s inaction and lack of communication 12 with the Court constitute deliberate and unreasonable delay. See, e.g., Thomas v. 13 Maricopa Cnty. Jail, 265 F. App’x. 606, 607 (9th Cir. 2008) (holding that district 14 court did not abuse its discretion by dismissing pro se prisoner lawsuit for failure to 15 respond to a court order for almost three months). Petitioner’s noncompliance also 16 interferes with the public’s interest in the expeditious resolution of this litigation 17 and hinders the Court’s ability to manage its docket. See In re: 18 Phenylpropanolamine, 460 F.3d at 1227 (“[The Ninth Circuit] defer[s] to the 19 district court’s judgment about when a delay becomes unreasonable ‘because it is in 20 the best position to determine what period of delay can be endured before its docket 21 becomes unmanageable.’” (quoting In re Eisen, 31 F.3d at 1451)). The first and 22 second factors therefore weigh in favor of dismissal. 23 24 B. Risk of Prejudice to Defendants 25 The third factor (risk of prejudice to the defendants) also weighs in favor of 26 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 27 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 28 the case.” In re: Phenylpropanolamine, 460 F.3d at 1227 (quoting Adriana Int’l 1 Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990)). “The law also presumes 2 prejudice from unreasonable delay.” Id. The risk of prejudice to a defendant is 3 related to a plaintiff’s reason for failure to prosecute an action. Pagtalunan, 291 4 F.3d at 642. “Whether prejudice is sufficient to support an order of dismissal is in 5 part judged with reference to the strength of the plaintiff’s excuse for the default.” 6 Malone, 833 F.2d at 131. 7 As Petitioner has not updated his address, the Court cannot know for certain 8 his reason for failing to prosecute this lawsuit or to comply with Court orders. The 9 Court may suspect Petitioner has abandoned this case because he has already 10 obtained the relief he sought, but he has not actually communicated that fact to the 11 Court. This cannot excuse his failure to prosecute, however. See Carey v. King, 12 856 F.2d 1439, 1441 (9th Cir. 1988) (“It would be absurd to require the district 13 court to hold a case in abeyance indefinitely just because it is unable, through the 14 plaintiff’s own fault, to contact the plaintiff to determine if his reasons for not 15 prosecuting his lawsuit are reasonable or not.”). As a “presumption of prejudice 16 arises from the plaintiff’s failure to prosecute,” Hernandez v. City of El Monte, 138 17 F.3d 393, 400 (9th Cir. 1998), the third factor weighs in favor of dismissal. 18 19 C. Availability of Less Drastic Alternatives 20 The fourth factor (the availability of less drastic alternatives) also supports 21 dismissal. “The district court need not exhaust every sanction short of dismissal 22 before finally dismissing a case, but must explore possible and meaningful 23 alternatives.” Henderson, 779 F.2d at 1424. Here, as Petitioner has not updated his 24 address with the Court, no alternatives to dismissal without prejudice currently are 25 available. See Carey, 856 F.2d at 1441 (concluding that there was no less drastic 26 sanction available than dismissal where mail addressed to plaintiff was returned by 27 the post office as undeliverable and plaintiff did not provide updated address to 28 court). The fourth factor also weighs in favor of dismissal. 1 D. Public Policy Favoring Disposition on the Merits 2 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 3 merits.” Pagtalunan, 291 F.3d at 643. However, “a case that is stalled or 4 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 5 toward resolution on the merits.” In re: Phenylpropanolamine, 460 F.3d at 1228. 6 Thus, “this factor lends little support to a party whose responsibility it is to move a 7 case towards disposition on the merits but whose conduct impedes progress in that 8 direction.” Id. (internal quotation marks omitted). Here, while Petitioner’s failure 9 to update his address or to comply with court orders has stalled the case, it further 10 appears that the Court would not be able to reach the merits of the case even if 11 Petitioner had not abandoned it. As the only relief Petitioner sought was to be 12 released from custody by mid-September 2024, and he was in fact released on July 13 31, 2024, the case would appear to be moot. While a habeas petition challenging a 14 prisoner’s underlying criminal conviction might not be mooted by the prisoner’s 15 release from custody, that is not the case here. Petitioner challenged nothing but the 16 calculation of his release date—so now that he has been released from custody, 17 there is no additional relief that the Court could grant. See Spencer v. Kemna, 523 18 U.S. 1, 18 (1998) (holding that habeas petition challenging parole revocation was 19 moot after termination of petitioner’s parole status); Munoz v. Rowland, 104 F.3d 20 1096, 1097–98 (9th Cir. 1997) (holding that appeal from denial of habeas petition 21 challenging prisoner’s confinement to SHU was mooted by prisoner’s release from 22 custody, as the court could “no longer provide him the primary relief sought in his 23 habeas corpus petition”); Ohman v. Herrera, 83 Fed. App’x 236, 236 (9th Cir. 24 2003) (holding that federal prisoner’s habeas petition challenging the loss of good 25 time credits was mooted by prisoner’s release from custody); Navarro v. Ricolcol, 26 ED CV 23-1528 DMG (MRW), 2023 WL 8375209, at *1 (C.D. Cal. Nov. 13, 2023) 27 (same). Thus, while this factor may not weigh in favor of dismissing the case for 28 failure to prosecute, it does not weigh against dismissal of the case, either. Given | || the apparent mootness of this case, the public policy favoring disposition on the 2 || merits would not be forwarded by declining to dismiss this case now. At most, this 3 || factor is neutral. 4 5 E. Dismissal Without Prejudice 6 Since at least four factors support dismissal, and none weigh against it, 7 || dismissal here is appropriate. See Dreith, 648 F.3d at 788-89. Even in cases where 8 || “the public policy favoring disposition of cases on their merits weighs against 9 || [dismissal], that single factor is not enough to preclude imposition of this sanction 10 || when the other four factors weigh in its favor.” Rio Props., Inc. v. Rio Int'l 11 || Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). The Court therefore concludes that 12 || dismissal of this action for failure to prosecute and to comply with Court orders is 13 || warranted, but, consistent with Rule 41(b) and this Court’s exercise of its 14 || discretion, the dismissal is without prejudice. 15 16 | IV. CONCLUSION 17 IT THEREFORE IS ORDERED that this lawsuit is DISMISSED without 18 || prejudice. 19 ie en 20 || DATED: November 19, 2024 ~ | nahn ih 1 JOSEPHINE L. STATON UNITED STATES DISTRICT JUDGE 22 °3 Presented by: 24 ps) °° le 26 || UNITED STATES MAGISTRATE JUDGE 27 28