Tommy Cole v. Unknown

• Court: District Court, C.D. California
• Decided: March 10, 2021
• Docket: 2:21-cv-00093
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TOMMY COLE, Case No. CV 21-0093-GW (RAO) 12 Petitioner, ORDER DENYING APPLICATION 13 v. AND DISMISSING ACTION WITHOUT PREJUDICE 14 UNKNOWN, 15 Respondent. 16 17 On January 6, 2021, the Court received a letter from Petitioner Tommy Cole 18 (“Petitioner”), who is currently incarcerated in Folsom State Prison, California, 19 seeking a 30-day extension of time (“Application”). Dkt. No. 1. Because Petitioner 20 did not and does not appear to have a pending action in the Central District of 21 California, the Court ordered Petitioner to submit a response no later than February 22 12, 2021, stating the case for which he was seeking an extension of time. Dkt. No. 23 3. Petitioner has not filed a response nor requested additional time to do so. For the 24 following reasons, the action is dismissed without prejudice. 25 Absent any further explanation from Petitioner, the Court construes his 26 application as an attempt to both commence and request an extension of time to file 27 a habeas corpus action. His application, in effect, seeks an advisory opinion 28 regarding whether his federal habeas petition will be time-barred if: (a) the petition 1 is filed at some unspecified date in the future, which may or may not be within the 2 statute of limitations; and (b) Respondent raises the statute of limitations as an 3 affirmative defense. As such, it seeks relief which the Court cannot grant without 4 violating the “case or controversy” requirement of Article III, Section 2, of the United 5 States Constitution. See, e.g., In re Ortiz, 2010 WL 1170484, at *1 (C.D. Cal. Mar. 6 25, 2010); see also United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000) (holding 7 federal court lacks jurisdiction to consider the timeliness of a § 2255 petition until 8 the petition actually is filed). 9 If Petitioner files a federal habeas petition after the statute of limitations has 10 expired and if Respondent raises the statute of limitations as an affirmative defense, 11 it will be incumbent on Petitioner to demonstrate that the Petition is not subject to 12 dismissal on statute of limitations grounds. These issues, however, cannot be 13 resolved at this time in the context of this motion. For these reasons, the Application 14 is denied and the action is dismissed without prejudice. 15 In the alternative, if Petitioner had other intentions in filing his application for 16 an extension of time, his action is dismissed without prejudice for failure to 17 prosecute. 18 It is well established that a district court has the authority to dismiss an action 19 for failure to prosecute and/or for failure to comply with court orders. Fed. R. Civ. 20 P 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30 (1962) (explaining 21 district court has authority to dismiss case for lack of prosecution in order to prevent 22 undue delays in disposition of pending cases and to avoid congestion in court’s 23 calendar); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (finding district 24 courts have authority to dismiss for failure to comply with court order). 25 The Court considers five factors when evaluating whether dismissal is 26 appropriate: (1) the public interest in expeditious resolution of litigation; (2) the 27 Court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the 28 1 || public policy favoring disposition of cases on their merits; and (5) the availability of 2 || less drastic sanctions. Ferdik, 963 F.2d at 1260-61. 3 In this case, both the public’s interest in the expeditious resolution of cases and 4 || the Court’s need to manage its docket weigh in favor of dismissal. It appears that 5 || Petitioner is not interested in pursuing this action as evidenced by the fact that he has 6 || not responded to the Court’s initial order. 7 As to the third factor, prejudice to Respondent, this factor is neutral as 8 || Petitioner has not filed any petition and no respondent is identified in the Application 9 || to the Court. The fourth factor—the general policy favoring resolution of cases on the 10 || merits—weighs in favor of dismissal as Petitioner has not presented any substantive 11 || claims and, thus, there are no merits to adjudicate. 12 Finally, the fifth factor—the availability of less drastic alternatives—also weighs 13 || in favor of dismissal. Petitioner’s refusal at this initial stage of the proceedings to 14 || comply with the Court’s order does not bode well for any further attempt to effect 15 || compliance. 16 Considering all five factors and finding that four of the five weigh in favor of 17 || dismissal, the Court concludes that dismissal for failure to prosecute is warranted. 18 || See Ferdik, 963 F.2d at 1263 (concluding dismissal appropriate where supported by 19 || three factors). The case is hereby dismissed without prejudice. 20 IT IS SO ORDERED. 21 || DATED: March 10, 2021 A forge KK, Ya: GEORGEH.WU 23 UNITED STATES DISTRICT JUDGE 24 || Presented by: 25 x Rayelis, GA. OC 97 || ROZELLA A. OLIVER 98 UNITED STATES MAGISTRATE JUDGE