1 2 3 4 5 6 7 10 11 ROBERT MENDOZA, Case No. 2:20-cv-06495-JVS-MAA 12 Petitioner, ORDER DISMISSING PETITION AND DISMISSING ACTION 13 v. WITHOUT PREJUDICE CALIFORNIA, 15 Respondent. 16 17 19 On July 21, 2020, the Court received and filed Petitioner Robert Mendoza’s 20 (“Petitioner”) pro se petition for a writ of habeas corpus (“Petition”). (Pet., ECF 21 No. 1.) On July 23, 2020, in response to the filing of the Petition, the Court ordered 22 Petitioner to file an amended petition incorporating a completed Form CV-69, this 23 district’s form for habeas petitions by individuals in state custody, by no later than 24 September 23, 2020 (“July 23 Order”). (July 23 Or., ECF No. 3.) The Court 25 warned that failure to comply with the July 23 Order would result in a 26 recommendation that the Petition be dismissed. (Id.) Both the July 23 Order and 27 another document mailed to Petitioner by the Court were returned to the Court as 28 undeliverable. (ECF Nos. 5, 6.) 1 On October 19, 2020, the Court ordered Petitioner to show cause why the 2 Petition should not be dismissed for failure to prosecute and failure to comply with 3 a court order (“October 19 Order”). (Oct. 19, 2020 Or., ECF No. 7.) The Court 4 noted that Petitioner had not responded to the July 23 Order. (Id. at 2.) Given that 5 the July 23 Order was returned undelivered, the Court also notified Petitioner of his 6 obligation to update his address in the event of his transfer or release. (Id. at 1–2.) 7 On October 22, 2020, the Court received and filed a handwritten letter from 8 Petitioner (“October 22 Letter”). (Oct. 22, 2020 Letter, ECF No. 8.) The address 9 on the October 22 Letter showed that Petitioner remained in custody at the Men’s 10 Central Jail. (Id. at 1, 3.1) 11 On October 30, 2020, the Court issued an Order discharging the October 19 12 Order and ordering Petitioner to file an amended petition using Form CV-69 and to 13 either pay the $5 filing fee or apply for leave to proceed in forma pauperis 14 (“October 30 Order”). (Oct. 30, 2020 Or., ECF No. 9.) 15 On November 13, 2020, the Court received and filed another handwritten 16 letter from Petitioner (“November 13 Letter”). (Nov. 13, 2020 Letter, ECF No. 10.) 17 This letter is difficult to follow and appears to allege that the Court’s October 30 18 Order to file an amended petition using Form CV-69 is part of a conspiracy to 19 violate Petitioner’s fundamental rights. (Id.) 20 On November 24, 2020, the Court issued another Order addressing 21 Petitioner’s allegations in the November 13 Letter and again ordering Petitioner to 22 file an amended petition using Form CV-69 and to either pay the $5 filing fee or 23 apply for leave to proceed in forma pauperis by December 14, 2020 (“November 24 24 Order”). (Nov. 24, 2020 Or., ECF No. 11.) The Court cautioned Petitioner that 25 failure to comply by December 14, 2020 would result in a recommendation that the 26 27 1 Pinpoint citations of Petitioner’s filings in this Order refer to the page numbers 28 appearing in the ECF-generated headers. 1 Petition be dismissed for failure to prosecute and failure to comply with a court 2 order. (Id. at 3.) 3 On December 1, 2020, the Court’s November 24 Order was returned as 4 undeliverable. (ECF No. 12.) The stamp on the envelope indicates that Petitioner 5 has been released. (Id. at 1.) 6 On February 23, 2021, in the absence of any correspondence from Petitioner, 7 the Court issued another Order to Show Cause why the Petition should not be 8 dismissed for failure to prosecute and failure to comply with a court order pursuant 9 to Federal Rule of Civil Procedure 41 based on Petitioner’s failure to comply with 10 the Court’s orders (“February 23 Order”). (Feb. 23, 2021 Or., ECF No. 15.) The 11 Court also noted the requirements of Central District of California Local Civil Rule 12 41-6 (“Local Rule 41-6”): 13 A party proceeding pro se shall keep the Court and opposing parties 14 apprised of such party’s current address and phone number, if any, 15 and email address, if any. If mail directed by the Clerk to a pro se 16 plaintiff’s address of record is returned undeliverable by the Postal 17 Service, and if, within fifteen (15) days of the service date, such 18 plaintiff fails to notify, in writing, the Court and opposing parties of 19 said plaintiff’s current address, the Court may dismiss the action with 20 or without prejudice for want of prosecution. 21 (Id. at 2 (quoting C.D. Cal. L.R. 41-6).) The Court ordered Petitioner to respond by 22 March 25, 2021 and warned that failure to do so would result in dismissal. (Id. at 23 3.) Despite having received undelivered mail, the Court had no choice but to mail 24 the February 23 Order to Petitioner’s original address because Petitioner had not 25 filed a notice of change of address. On March 8, 2021, this February 23 Order was 26 returned as undeliverable. (ECF No. 16.) Again, the stamp on the envelope 27 indicates that Petitioner has been released. (Id. at 1.) 28 1 To date, Petitioner has not responded to the Court’s November 24 or 2 February 23 Orders, nor has he notified the Court of any change of address. 3 5 A. Legal Standard 6 District courts may dismiss cases sua sponte for failure to prosecute or for 7 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 8 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 9 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that federal 10 district courts have “inherent power” to dismiss cases sua sponte for lack of 11 prosecution). Dismissal, however, “is a harsh penalty and is to be imposed only in 12 extreme circumstances.” Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) 13 Prods. Liab. Litig.), 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. 14 Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). “A Rule 41(b) dismissal must be 15 supported by a showing of unreasonable delay.” Omstead v. Dell, 594 F.3d 1081, 16 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 17 1986)) (internal quotation marks omitted). 18 Before dismissing an action for failure to prosecute or for failure to comply 19 with a court order, a district court must weigh five factors: “(1) the public’s interest 20 in expeditious resolution of litigation; (2) the court’s need to manage its docket; 21 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 22 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 23 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The Ninth Circuit will 24 “affirm a dismissal where at least four factors support dismissal, or where at least 25 three factors strongly support dismissal.” Dreith v. Nu Image, Inc., 648 F.3d 779, 26 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 27 1999)). 28 /// 1 B. The Factors Support Dismissal. 2 1.
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1 2 3 4 5 6 7 10 11 ROBERT MENDOZA, Case No. 2:20-cv-06495-JVS-MAA 12 Petitioner, ORDER DISMISSING PETITION AND DISMISSING ACTION 13 v. WITHOUT PREJUDICE CALIFORNIA, 15 Respondent. 16 17 19 On July 21, 2020, the Court received and filed Petitioner Robert Mendoza’s 20 (“Petitioner”) pro se petition for a writ of habeas corpus (“Petition”). (Pet., ECF 21 No. 1.) On July 23, 2020, in response to the filing of the Petition, the Court ordered 22 Petitioner to file an amended petition incorporating a completed Form CV-69, this 23 district’s form for habeas petitions by individuals in state custody, by no later than 24 September 23, 2020 (“July 23 Order”). (July 23 Or., ECF No. 3.) The Court 25 warned that failure to comply with the July 23 Order would result in a 26 recommendation that the Petition be dismissed. (Id.) Both the July 23 Order and 27 another document mailed to Petitioner by the Court were returned to the Court as 28 undeliverable. (ECF Nos. 5, 6.) 1 On October 19, 2020, the Court ordered Petitioner to show cause why the 2 Petition should not be dismissed for failure to prosecute and failure to comply with 3 a court order (“October 19 Order”). (Oct. 19, 2020 Or., ECF No. 7.) The Court 4 noted that Petitioner had not responded to the July 23 Order. (Id. at 2.) Given that 5 the July 23 Order was returned undelivered, the Court also notified Petitioner of his 6 obligation to update his address in the event of his transfer or release. (Id. at 1–2.) 7 On October 22, 2020, the Court received and filed a handwritten letter from 8 Petitioner (“October 22 Letter”). (Oct. 22, 2020 Letter, ECF No. 8.) The address 9 on the October 22 Letter showed that Petitioner remained in custody at the Men’s 10 Central Jail. (Id. at 1, 3.1) 11 On October 30, 2020, the Court issued an Order discharging the October 19 12 Order and ordering Petitioner to file an amended petition using Form CV-69 and to 13 either pay the $5 filing fee or apply for leave to proceed in forma pauperis 14 (“October 30 Order”). (Oct. 30, 2020 Or., ECF No. 9.) 15 On November 13, 2020, the Court received and filed another handwritten 16 letter from Petitioner (“November 13 Letter”). (Nov. 13, 2020 Letter, ECF No. 10.) 17 This letter is difficult to follow and appears to allege that the Court’s October 30 18 Order to file an amended petition using Form CV-69 is part of a conspiracy to 19 violate Petitioner’s fundamental rights. (Id.) 20 On November 24, 2020, the Court issued another Order addressing 21 Petitioner’s allegations in the November 13 Letter and again ordering Petitioner to 22 file an amended petition using Form CV-69 and to either pay the $5 filing fee or 23 apply for leave to proceed in forma pauperis by December 14, 2020 (“November 24 24 Order”). (Nov. 24, 2020 Or., ECF No. 11.) The Court cautioned Petitioner that 25 failure to comply by December 14, 2020 would result in a recommendation that the 26 27 1 Pinpoint citations of Petitioner’s filings in this Order refer to the page numbers 28 appearing in the ECF-generated headers. 1 Petition be dismissed for failure to prosecute and failure to comply with a court 2 order. (Id. at 3.) 3 On December 1, 2020, the Court’s November 24 Order was returned as 4 undeliverable. (ECF No. 12.) The stamp on the envelope indicates that Petitioner 5 has been released. (Id. at 1.) 6 On February 23, 2021, in the absence of any correspondence from Petitioner, 7 the Court issued another Order to Show Cause why the Petition should not be 8 dismissed for failure to prosecute and failure to comply with a court order pursuant 9 to Federal Rule of Civil Procedure 41 based on Petitioner’s failure to comply with 10 the Court’s orders (“February 23 Order”). (Feb. 23, 2021 Or., ECF No. 15.) The 11 Court also noted the requirements of Central District of California Local Civil Rule 12 41-6 (“Local Rule 41-6”): 13 A party proceeding pro se shall keep the Court and opposing parties 14 apprised of such party’s current address and phone number, if any, 15 and email address, if any. If mail directed by the Clerk to a pro se 16 plaintiff’s address of record is returned undeliverable by the Postal 17 Service, and if, within fifteen (15) days of the service date, such 18 plaintiff fails to notify, in writing, the Court and opposing parties of 19 said plaintiff’s current address, the Court may dismiss the action with 20 or without prejudice for want of prosecution. 21 (Id. at 2 (quoting C.D. Cal. L.R. 41-6).) The Court ordered Petitioner to respond by 22 March 25, 2021 and warned that failure to do so would result in dismissal. (Id. at 23 3.) Despite having received undelivered mail, the Court had no choice but to mail 24 the February 23 Order to Petitioner’s original address because Petitioner had not 25 filed a notice of change of address. On March 8, 2021, this February 23 Order was 26 returned as undeliverable. (ECF No. 16.) Again, the stamp on the envelope 27 indicates that Petitioner has been released. (Id. at 1.) 28 1 To date, Petitioner has not responded to the Court’s November 24 or 2 February 23 Orders, nor has he notified the Court of any change of address. 3 5 A. Legal Standard 6 District courts may dismiss cases sua sponte for failure to prosecute or for 7 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 8 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 9 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that federal 10 district courts have “inherent power” to dismiss cases sua sponte for lack of 11 prosecution). Dismissal, however, “is a harsh penalty and is to be imposed only in 12 extreme circumstances.” Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) 13 Prods. Liab. Litig.), 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. 14 Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). “A Rule 41(b) dismissal must be 15 supported by a showing of unreasonable delay.” Omstead v. Dell, 594 F.3d 1081, 16 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 17 1986)) (internal quotation marks omitted). 18 Before dismissing an action for failure to prosecute or for failure to comply 19 with a court order, a district court must weigh five factors: “(1) the public’s interest 20 in expeditious resolution of litigation; (2) the court’s need to manage its docket; 21 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 22 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 23 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The Ninth Circuit will 24 “affirm a dismissal where at least four factors support dismissal, or where at least 25 three factors strongly support dismissal.” Dreith v. Nu Image, Inc., 648 F.3d 779, 26 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 27 1999)). 28 /// 1 B. The Factors Support Dismissal. 2 1. The Public’s Interest in Expeditious Resolution and the Court’s 3 Need to Manage its Docket 4 The first and second factors—the public’s interest in expeditious resolution 5 of litigation and the Court’s need to manage its docket—generally are considered 6 together. See Prods. Liab. Litig., 460 F.3d at 1227; Moneymaker v. CoBen (In re 7 Eisen), 31 F.3d 1447, 1452 (9th Cir. 1994) (The first two factors are usually 8 reviewed together “to determine if there is an unreasonable delay.”). 9 Here, these factors weigh in favor of dismissal. “Orderly and expeditious 10 resolution of disputes is of great importance to the rule of law.” Prods. Liab. Litig., 11 460 F.3d at 1227. Thus, “[t]he public’s interest in expeditious resolution of 12 litigation always favors dismissal.” Pagtalunan, 291 F.3d at 642 (quoting Yourish, 13 191 F.3d at 990). In addition, district courts “have an inherent power to control their 14 dockets,” Prods. Liab. Litig., 460 F.3d at 1227 (quoting Thompson v. Hous. Auth. of 15 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986)), and “are best suited to 16 determine when delay in a particular case interferes with docket management and 17 the public interest.” Yourish, 191 F.3d at 990 (quoting Ash v. Cvetkov, 739 F.2d 18 493, 496 (9th Cir. 1984)). 19 To date, Petitioner has not complied with the Court’s orders to submit an 20 amended petition using Form CV-69 and to either pay the $5 filing fee or submit a 21 request to proceed in forma pauperis. He has not filed any response to the Court’s 22 November 24 or February 23 Orders. Moreover, given the mail returned to the 23 Court undelivered, it appears that Petitioner has failed to notify the Court 24 promptly of any change of address, as required by Local Rule 41-6. 25 The Court concludes that Petitioner’s failure to comply with these Court 26 orders and failure to prosecute the lawsuit constitute unreasonable delay. See 27 Thomas v. Maricopa Cnty. Jail, 265 Fed. App’x 606, 607 (9th Cir. 2008) (holding 28 that district court did not abuse its discretion by dismissing pro se prisoner lawsuit 1 for failure to respond to a court order for almost three months). Petitioner’s 2 noncompliance and inaction also interfere with the public’s interest in the 3 expeditious resolution of this litigation and hinder the Court’s ability to manage its 4 docket. See Prods. Liab. Litig., 460 F.3d at 1227 (“[The Ninth Circuit] defer[s] to 5 the district court’s judgment about when a delay becomes unreasonable ‘because 6 it is in the best position to determine what period of delay can be endured before 7 its docket becomes unmanageable.’” (quoting Moneymaker v. CoBen (In re 8 Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994))). For these reasons, the first and 9 second factors favor dismissal. 10 11 2. Risk of Prejudice to Respondent 12 The third factor also supports dismissal without prejudice. The risk of 13 prejudice to a respondent is related to a petitioner’s reason for failure to prosecute an 14 action, even in cases such as this in which the respondent has not yet been ordered to 15 respond to a habeas corpus petition. See Pagtalunan, 291 F.3d at 642. Here, 16 Petitioner has offered no reason for failing to respond to the Court’s November 24 or 17 February 23 Orders. The absence of any reason indicates sufficient prejudice to 18 Respondent. See Yourish, 191 F.3d at 991–92 (holding that a paltry excuse for 19 default indicates sufficient prejudice to the defendants); see also Laurino v. Syringa 20 Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (holding that “a presumption of 21 prejudice arises from a plaintiff’s unexplained failure to prosecute”). Moreover, the 22 fact that these Orders were returned as undeliverable does not excuse Petitioner’s 23 failure to respond in light of Petitioner’s obligation to notify the Court of any change 24 of address. See C.D. Cal. L.R. 41-6. 25 26 3. Availability of Less Drastic Alternatives 27 The fourth factor also supports dismissal without prejudice. “Warning that 28 failure to obey a court order will result in dismissal can itself meet the 1 ‘consideration of alternatives’ requirement.” Prods. Liab. Litig., 460 F.3d at 1229 2 (citing, inter alia, Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1991) 3 (“Moreover, our decisions also suggest that a district court’s warning to a party 4 that his failure to obey the court’s order will result in dismissal can satisfy the 5 ‘consideration of alternatives’ requirement.”)). Here, rather than dismissing the 6 Petition when Petitioner failed to respond to the November 24 Order, the Court 7 issued the February 23 Order, warning Petitioner that the Petition would be 8 dismissed if he did not respond by March 25, 2021. (Feb. 23, 2021 Or. at 3.) 9 Petitioner failed to file a response that complied with this District’s Local Rules. 10 11 4. Public Policy Favoring Disposition of Cases on Their Merits 12 The fifth factor weighs against dismissal. “We have often said that the 13 public policy favoring disposition of cases on their merits strongly counsels 14 against dismissal.” Prods. Liab. Litig., 460 F.3d at 1228 (citing Hernandez, 138 15 F.3d at 399). On the other hand, “this factor ‘lends little support’ to a party whose 16 responsibility it is to move a case toward disposition on the merits but whose 17 conduct impedes progress in that direction.” Id. (citations omitted). Thus, this 18 factor alone does not preclude dismissal. 19 20 C. Dismissal of this Action is Appropriate. 21 As discussed above, Petitioner’s failure to comply with Court orders and 22 failure to prosecute this action constitute unreasonable delay. In addition, four of the 23 dismissal factors weigh in favor of dismissal, whereas only one factor weighs 24 against dismissal. “While the public policy favoring disposition of cases on their 25 merits weighs against [dismissal], that single factor is not enough to preclude 26 imposition of this sanction when the other four factors weigh in its favor.” Rio 27 Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). 28 /// 1 The Court concludes that dismissal of this action for failure to comply with 2 || Court orders and failure to prosecute is warranted. However, consistent with Rule 3 || 41(b) and this Court’s exercise of its discretion, the dismissal should be without 4 || prejudice. 5 6 | I. CONCLUSION 7 Accordingly, IT IS HEREBY ORDERED that (1) the Petition is 8 || DISMISSED for failure to comply with court orders and failure to prosecute, and 9 || (2) the Clerk is directed to enter judgment dismissing this action without prejudice. 10 11 |} IV. CERTIFICATE OF APPEALABILITY 12 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 13 || United States District Courts, the Court “must issue or deny a certificate of 14 || appealability when it enters a final order adverse to the applicant.” The Court has 15 || considered whether a certificate of appealability is warranted. See 28 U.S.C. 16 |] § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court 17 || concludes that a certificate of appealability is not warranted; thus, a certificate of 18 || appealability is DENIED. Bi if Al ee us, Yeh □ 20 | DATED: May 24, 2021 Y/ 21 22 JAMESV.SELNA s—s—s 3 UNITED STATES DISTRICT JUDGE Presented by: 25 26 wy 27 || MARI by AUDERO