Case 5:22-cv-00099-AB-KES Document 6 Filed 06/08/22 Page 1 of 6 Page ID #:35
1 2 O
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
11 ROBERT DARRELL JOHNSON, Case No. 5:22-cv-00099-AB-KES
12 Petitioner,
13 v. ORDER DISM ISSING ACTION FOR FAILURE TO PROSECUTE 14 WARDEN,
15 Respondent.
18 I.
19 BACKGROUND
20 On January 1, 2022, Robert Darrell Johnson (“Petitioner”) filed a Petition for 21 Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 22 (“Petition”). Petitioner challenges his 2013 conviction for murder and resulting 23 sentence of 25 years to life without the possibility of parole. Petitioner was found 24 not guilty by reason of insanity and committed to Patton State Hospital for 25 restoration of his sanity. (Dkt. 1); see People v. Johnson, No. E071648, Cal. App. 26 Unpub. LEXIS 7591 (Dec. 4, 2020). 27 On January 20, 2022, the Court issued an Order to Show Cause (“January 28 OSC”) why the Petition should not be dismissed without prejudice for failure to 1 Case 5:22-cv-00099-AB-KES Document 6 Filed 06/08/22 Page 2 of 6 Page ID #:36
1 exhaust by presenting a habeas petition in state court. (Dkt. 4.) The January OSC 2 noted that Petitioner admits in his Petition that none of his claims were raised on 3 direct appeal to the California Court of Appeal or in a habeas petition to the 4 California Supreme Court, nor did Petitioner file any habeas petitions in any state 5 court with respect to his murder conviction and confinement order. (Id. at 5.) 6 Additionally, the January OSC discussed the impropriety of Petitioner seeking to 7 recover monetary damages in the Petition based on his treatment by deputies at the 8 West Valley Detention center. Thus, the Court ordered that, on or before February 9 21, 2022, Petitioner show cause why the Petition should not be dismissed without 10 prejudice as unexhausted. (Id. at 5-6.) 11 Petitioner was ordered either to (1) explain when and how he believed any or 12 all of the claims in the Petition were exhausted in the state courts; (2) file a notice 13 of voluntary dismissal of the Petition; or (3) file a motion to stay the action while he 14 attempted to exhaust his claims in state court. (Id. at 8.) Petitioner did not respond 15 to the January OSC. However, the Court did not expressly tell Petitioner that his 16 failure to respond to the January OSC could result in dismissal of his habeas 17 petition. 18 Then, on March 17, 2022, the Court issued another Order to Show Cause 19 (“March OSC”) why the action should not be dismissed for failure to 20 prosecute/obey court orders. (Dkt. 5.) The March OSC ordered Petitioner again 21 either to (1) explain when and how he believed any or all of the claims in the 22 Petition were exhausted in the state courts; (2) file a notice of voluntary dismissal 23 of the Petition; or (3) file a motion to stay the action while he attempted to exhaust 24 his claims in state court. (Id.) This time, however, the Court stated: “If Plaintiff 25 fails to respond to this Order to Show Cause, the Court may dismiss this action 26 for lack of prosecution and/or failure to follow the Court’s orders.” (Id., 27 emphasis original). As of the date of this order, Petitioner has failed to respond to 28 the March 17 OSC or take any action in this matter. 2 Case 5:22-cv-00099-AB-KES Document 6 Filed 06/08/22 Page 3 of 6 Page ID #:37
1 II. 2 DISCUSSION 3 A district court may dismiss an action for failure to prosecute, failure to 4 follow court orders, or failure to comply with the federal or local rules. See Fed. 5 R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 6 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). 7 In determining whether to dismiss a case for failure to prosecute or failure to 8 comply with court orders, the Ninth Circuit has instructed district courts to consider 9 the following five factors: (1) the public’s interest in expeditious resolution of 10 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 11 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 12 favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) 13 Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 14 A. Factors that Support Dismissal. 15 1. The Public’s Interest in Expeditious Resolution of Litigation. 16 “The public’s interest in expeditious resolution of litigation always favors 17 dismissal.” Pagtalunan, 291 F.3d at 642 (9th Cir. 2002). Nearly two weeks have 18 passed since the Court’s second OSC why the Petition should not be dismissed as 19 unexhausted. Yet Petitioner has failed to make any effort to show cause or to 20 inform the Court of any intention to do so. This factor thus weighs in favor of 21 dismissal. 22 2. The Court’s Need to Manage Its Docket. 23 The second factor weighs in favor of dismissal. Courts have “the power to 24 manage their dockets without being subject to the endless vexatious noncompliance 25 of litigants.” See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, 26 the second factor focuses on whether a particular case has “consumed … time that 27 could have been devoted to other cases on the [court’s] docket.” See Pagtalunan, 28 291 F.3d at 642; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 3 Case 5:22-cv-00099-AB-KES Document 6 Filed 06/08/22 Page 4 of 6 Page ID #:38
1 2004)(“[R]esources continue to be consumed by a case sitting idly on the court’s 2 docket.”). 3 Petitioner’s inaction hinders the Court’s ability to move this case toward 4 disposition and indicates that he does not intend to litigate this action diligently. 5 The Court has expended its finite resources providing Petitioner with two 6 opportunities to show cause why the Petition should not be dismissed. As a result, 7 this case has consumed time that could have been devoted to other cases on the 8 Court’s docket. The Court cannot continue to spend valuable resources attempting 9 to move forward a case that Petitioner does not wish to expeditiously pursue. Thus, 10 the Court’s need to manage its docket favors dismissal. 11 3. The Risk of Prejudice to Respondent. 12 The third factor also favors dismissal. A rebuttable presumption of prejudice 13 to the respondent arises when a petitioner unreasonably delays prosecution of an 14 action, In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994), and unnecessary delay 15 “inherently increases the risk that witnesses’ memories will fade and evidence will 16 become stale.” Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). Nothing 17 suggests that such a presumption is unwarranted in this case. 18 4. Availability of Less Drastic Alternatives 19 A “district court need not exhaust every sanction short of dismissal before 20 finally dismissing a case, but must explore possible and meaningful alternatives.” 21 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986).
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Case 5:22-cv-00099-AB-KES Document 6 Filed 06/08/22 Page 1 of 6 Page ID #:35
1 2 O
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
11 ROBERT DARRELL JOHNSON, Case No. 5:22-cv-00099-AB-KES
12 Petitioner,
13 v. ORDER DISM ISSING ACTION FOR FAILURE TO PROSECUTE 14 WARDEN,
15 Respondent.
18 I.
19 BACKGROUND
20 On January 1, 2022, Robert Darrell Johnson (“Petitioner”) filed a Petition for 21 Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 22 (“Petition”). Petitioner challenges his 2013 conviction for murder and resulting 23 sentence of 25 years to life without the possibility of parole. Petitioner was found 24 not guilty by reason of insanity and committed to Patton State Hospital for 25 restoration of his sanity. (Dkt. 1); see People v. Johnson, No. E071648, Cal. App. 26 Unpub. LEXIS 7591 (Dec. 4, 2020). 27 On January 20, 2022, the Court issued an Order to Show Cause (“January 28 OSC”) why the Petition should not be dismissed without prejudice for failure to 1 Case 5:22-cv-00099-AB-KES Document 6 Filed 06/08/22 Page 2 of 6 Page ID #:36
1 exhaust by presenting a habeas petition in state court. (Dkt. 4.) The January OSC 2 noted that Petitioner admits in his Petition that none of his claims were raised on 3 direct appeal to the California Court of Appeal or in a habeas petition to the 4 California Supreme Court, nor did Petitioner file any habeas petitions in any state 5 court with respect to his murder conviction and confinement order. (Id. at 5.) 6 Additionally, the January OSC discussed the impropriety of Petitioner seeking to 7 recover monetary damages in the Petition based on his treatment by deputies at the 8 West Valley Detention center. Thus, the Court ordered that, on or before February 9 21, 2022, Petitioner show cause why the Petition should not be dismissed without 10 prejudice as unexhausted. (Id. at 5-6.) 11 Petitioner was ordered either to (1) explain when and how he believed any or 12 all of the claims in the Petition were exhausted in the state courts; (2) file a notice 13 of voluntary dismissal of the Petition; or (3) file a motion to stay the action while he 14 attempted to exhaust his claims in state court. (Id. at 8.) Petitioner did not respond 15 to the January OSC. However, the Court did not expressly tell Petitioner that his 16 failure to respond to the January OSC could result in dismissal of his habeas 17 petition. 18 Then, on March 17, 2022, the Court issued another Order to Show Cause 19 (“March OSC”) why the action should not be dismissed for failure to 20 prosecute/obey court orders. (Dkt. 5.) The March OSC ordered Petitioner again 21 either to (1) explain when and how he believed any or all of the claims in the 22 Petition were exhausted in the state courts; (2) file a notice of voluntary dismissal 23 of the Petition; or (3) file a motion to stay the action while he attempted to exhaust 24 his claims in state court. (Id.) This time, however, the Court stated: “If Plaintiff 25 fails to respond to this Order to Show Cause, the Court may dismiss this action 26 for lack of prosecution and/or failure to follow the Court’s orders.” (Id., 27 emphasis original). As of the date of this order, Petitioner has failed to respond to 28 the March 17 OSC or take any action in this matter. 2 Case 5:22-cv-00099-AB-KES Document 6 Filed 06/08/22 Page 3 of 6 Page ID #:37
1 II. 2 DISCUSSION 3 A district court may dismiss an action for failure to prosecute, failure to 4 follow court orders, or failure to comply with the federal or local rules. See Fed. 5 R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 6 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). 7 In determining whether to dismiss a case for failure to prosecute or failure to 8 comply with court orders, the Ninth Circuit has instructed district courts to consider 9 the following five factors: (1) the public’s interest in expeditious resolution of 10 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 11 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 12 favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) 13 Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 14 A. Factors that Support Dismissal. 15 1. The Public’s Interest in Expeditious Resolution of Litigation. 16 “The public’s interest in expeditious resolution of litigation always favors 17 dismissal.” Pagtalunan, 291 F.3d at 642 (9th Cir. 2002). Nearly two weeks have 18 passed since the Court’s second OSC why the Petition should not be dismissed as 19 unexhausted. Yet Petitioner has failed to make any effort to show cause or to 20 inform the Court of any intention to do so. This factor thus weighs in favor of 21 dismissal. 22 2. The Court’s Need to Manage Its Docket. 23 The second factor weighs in favor of dismissal. Courts have “the power to 24 manage their dockets without being subject to the endless vexatious noncompliance 25 of litigants.” See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, 26 the second factor focuses on whether a particular case has “consumed … time that 27 could have been devoted to other cases on the [court’s] docket.” See Pagtalunan, 28 291 F.3d at 642; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 3 Case 5:22-cv-00099-AB-KES Document 6 Filed 06/08/22 Page 4 of 6 Page ID #:38
1 2004)(“[R]esources continue to be consumed by a case sitting idly on the court’s 2 docket.”). 3 Petitioner’s inaction hinders the Court’s ability to move this case toward 4 disposition and indicates that he does not intend to litigate this action diligently. 5 The Court has expended its finite resources providing Petitioner with two 6 opportunities to show cause why the Petition should not be dismissed. As a result, 7 this case has consumed time that could have been devoted to other cases on the 8 Court’s docket. The Court cannot continue to spend valuable resources attempting 9 to move forward a case that Petitioner does not wish to expeditiously pursue. Thus, 10 the Court’s need to manage its docket favors dismissal. 11 3. The Risk of Prejudice to Respondent. 12 The third factor also favors dismissal. A rebuttable presumption of prejudice 13 to the respondent arises when a petitioner unreasonably delays prosecution of an 14 action, In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994), and unnecessary delay 15 “inherently increases the risk that witnesses’ memories will fade and evidence will 16 become stale.” Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). Nothing 17 suggests that such a presumption is unwarranted in this case. 18 4. Availability of Less Drastic Alternatives 19 A “district court need not exhaust every sanction short of dismissal before 20 finally dismissing a case, but must explore possible and meaningful alternatives.” 21 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Less drastic 22 alternatives to dismissal include warning a party that dismissal could result from 23 failure to obey a court order. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132, 24 n.1 (9th Cir. 1987); Ferdik, 963 F.2d at 1262 (“[A] district court's warning to a 25 party that his [or her] failure to obey the court's order will result in dismissal can 26 satisfy the ‘consideration of alternatives’ requirement.”) (citations omitted). 27 The Court has considered and implemented less drastic alternatives prior to 28 dismissal. The January and March OSCs explicitly ordered Petitioner to explain 4 Case 5:22-cv-00099-AB-KES Document 6 Filed 06/08/22 Page 5 of 6 Page ID #:39
1 why the Petition should not be dismissed as unexhausted, or otherwise dismiss the 2 Petition or stay the action. The Court explained in bold, underlined text to 3 Petitioner that his failure to respond to the March OSC could result in dismissal of 4 his habeas petition. Thus, Petitioner was well aware that her failure to do so would 5 result in the dismissal of the action. Any less drastic alternatives to dismissal 6 would be inadequate to remedy Petitioner’s failure to obey Court orders and to 7 prosecute his case. 8 5. Public Policy Favoring Disposition on the Merits 9 The fifth factor ordinarily weighs against dismissal. See Dreith v. Nu Image, Inc., 10 648 F.3d 779, 788 (9th Cir. 2011). “At the same time, a case that is stalled or 11 unreasonably delayed by a party's failure to comply with deadlines … cannot move 12 forward towards a resolution on the merits.” In re Phenylpropanolamine (PPA) 13 Prod. Liab. Litig., 460 F.3d at 1228. Accordingly, “this factor ‘lends little support’ 14 to a party [such as Respondent,] whose responsibility it is to move a case toward 15 disposition on the merits but whose conduct impedes progress in that direction.” 16 Id.; see also Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) 17 (“Although there is indeed a policy favoring disposition on the merits, it is the 18 responsibility of the moving party to move towards that disposition at a reasonable 19 pace, and to refrain from dilatory and evasive tactics.”) Further, the effect of this 20 factor is somewhat mitigated by the fact that some or all of the claims in the 21 Petition appear to be subject to dismissal, for the reasons discussed in the January 22 and March OSCs. 23 B. Conclusion. 24 Given that the enumerated factors largely support dismissal, this action 25 should be dismissed pursuant to Rule 41(b) and Local Rule 41-1 without prejudice. 26 Considering all of the circumstances, the action shall be dismissed in its entirety 27 without prejudice. See Fed. R. Civ. P. 41(b) (“[u]nless the dismissal order states 28 otherwise,” a dismissal pursuant to Federal Rule of Civil Procedure 41(b) operates 5 Case 5:22-cv-00099-AB-KES Document6 Filed 06/08/22 PageGof6 Page ID #:40
1 | as an adjudication on the merits absent exceptions that are not relevant here); Local 2 | Rule 41-2 (“[uJnless the Court provides otherwise, any dismissal pursuant to [Local 3 | Rule] 41-1 shall be without prejudice’); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 4 | (9th Cir. 1996). 5 IV. 6 CONCLUSION 7 IT IS THEREFORE ORDERED that Judgment shall be entered dismissing 8 || the First Amended Petition and this action without prejudice for failure to 9 | prosecute. ° 11 | DATED: June 08, 2022 2 ANDRE BIROTTE JR. 3 UNITED STATES DISTRICT JUDGE
14 | Presented by: Pou € Seat 16 | KAREN E. SCOTT 17 | UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28