1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Daniel L Whigham, No. CV-24-02579-PHX-DJH (JZB)
10 Petitioner, REPORT AND RECOMMENDATION
11 v.
12 Jason Gunther,
13 Respondent. 14 15 TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT 16 JUDGE: 17 Petitioner Daniel L. Whigham has filed a pro se Petition for Writ of Habeas Corpus 18 pursuant to 28 U.S.C. § 2241. (Doc. 1.) 19 I. Summary of Conclusion. 20 The Court previously sent two orders to the Petitioner with the correct address but 21 an incorrect federal register number for Petitioner. Those orders were returned as 22 undeliverable. On April 29, 2025, the Court discovered the error and sent a new Order to 23 Show Cause to Petitioner directing “that on or before May 16, 2025, Petitioner shall file 24 notice with the Court” that he received the Court’s prior order. He was also ordered to 25 advise if he received Respondent’s Response brief. Petitioner has not responded to that 26 order. Because Petitioner has failed to comply, he is not properly prosecuting his case. 27 Petitioner’s response to this Report and Recommendation is another opportunity for him 28 to properly prosecute this case or face dismissal of his Petition. 1 II. Background. 2 Petitioner raises two grounds for relief, claiming: 3 The Bureau of Prisons (BOP) is not allowing inmates who have a high or medium recidivism risk to “apply” their earned time credits (ETCs) toward 4 their sentence and is “bank[ing]” the ETCs until the inmate receives a minimum or low risk score. Petitioner claims this policy is “in direct 5 contradiction to Congress’[s] intent, and in violation of established law.” 6 BOP is denying Petitioner ETCs from the date he was sentenced until the time he arrived at his BOP-designated facility. Petitioner contends “Congress 7 intended for the ETCs to be available from the date a detained defendant’s sentence is imposed.” He asserts, however, that BOP’s policy is that an 8 inmate is eligible to earn ETCs only after the inmate “arrives at, or voluntarily surrenders at, the designated Bureau facility where the sentence 9 will be served,” not from when the inmate “is received in custody awaiting transportation to . . . the official detention facility at which the sentence is to 10 be served.” 11 (Doc. 5 at 1-2.) 12 III. Petitioner’s Habeas Petition. 13 On September 26, 2024, Petitioner filed the habeas petition. (Doc. 1.) 14 On January 15, 2025, Respondents filed a Response. (Doc. 12.) 15 A. Legal Standard. 16 Petitioner has the general duty to prosecute this case, to keep the Court apprised of 17 his current address, and to comply with the Court’s orders in a timely fashion. See LRCiv 18 83.3(d); Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 19 29 (9th Cir. 1978). “A party, not the district court, bears the burden of keeping the court 20 apprised of any changes in his mailing address.” Carey v. King, 856 F.2d 1439, 1441 (9th 21 Cir. 1988). In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme 22 Court recognized that a federal district court has the inherent power to dismiss a case sua 23 sponte for failure to prosecute, even though the language of Rule 41(b) of the Federal Rules 24 of Civil Procedure appears to require a motion from a party. Moreover, in appropriate 25 circumstances, the Court may dismiss a complaint for failure to prosecute even without 26 notice or a hearing. Id. at 633. 27 In determining whether Petitioner’s failure to prosecute warrants dismissal of the 28 case, the Court must weigh the following five factors: “(1) the public’s interest in 1 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 2 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 3 merits and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440 (quoting 4 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these factors 5 favor the imposition of sanctions in most cases, while the fourth cuts against a default or 6 dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” 7 Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). This test is applicable to the 8 dismissal of a habeas corpus petition for failure to prosecute. 9 B. Procedural Background. 10 On December 19, 2024, the Court ordered a response, set a reply deadline, and 11 mailed a copy of the order to Petitioner. (Doc. 5.) On December 30, 2024, the mailing to 12 Petitioner was returned as undelivered. (Doc. 8.) On January 3, 2025, the Court issued an 13 order that Petitioner “file a notice of change of address with the Court on or before January 14 17, 2025, or otherwise show cause why the action should not be dismissed for failure to 15 prosecute.” (Doc. 10.) On January 13, 2025, the order was returned as undeliverable stating 16 “attempted-not known.” (Doc. 11.) On January 15, 2025, the Response was filed. (Doc. 17 12.) Petitioner has not submitted a Reply. 18 On April 29, 2025, the Court consulted the Federal Bureau of Prisons inmate locator 19 and noted that Petitioner’s register number appearing on the site differs by one number 20 from the one on the Court’s docket. (Doc. 14.) The Court’s docket listed Petitioner’s federal 21 register number as 60587-10.” (Doc. 8.) Petitioner’s Federal Register Number online is 22 “60587-510.” (Doc. 14.)1 This number matches the number sent by Petitioner with the 23 Petition, which is 60587-510. (Doc. 1-1 at 1.) It appears the Court previously left out a “5” 24 in the number, even though Defendant’s name, his address, and most of the number were 25 correct. 26 So, on April 29, 2025, the Court sent a new Order to Show Cause to Petitioner 27 directing “that on or before May 16, 2025, Petitioner shall file notice with the Court 28 1 The website currently projects Petitioner’s release date as February 25, 2027. 1 indicating whether he has received the Screening Order, this Order, or the filed Response 2 (doc. 12), or show cause why this matter should not be dismissed for failure to prosecute.” 3 (Doc. 14.) This order has not been returned to the Court as undelivered. 4 C. Discussion. 5 In this case, the first two factors—public interest in expeditious resolution of 6 litigation and the need to manage the docket—weigh in favor of dismissal. Petitioner’s 7 noncompliance is causing unreasonable delay and halting the Court’s docket. Carey, 856 8 F.2d at 1441 (“It would be absurd to require the district court to hold a case in abeyance 9 indefinitely just because it is unable, through the plaintiff’s own fault, to contact the 10 plaintiff to determine if his reasons for not prosecuting his lawsuit are reasonable or not.”). 11 The third factor—prejudice to the opposing party—also weighs in favor of 12 dismissal, as a presumption of injury arises from the occurrence of unreasonable delay in 13 prosecuting an action. 14 The fourth factor—the availability of less drastic sanctions—ordinarily weighs 15 against dismissal. However, the Court attempted to avoid dismissal by ordering Petitioner 16 to show cause why this action should not be dismissed and expressly warned him that his 17 failure to comply with the Court’s orders could result in dismissal. (Doc. 14.) In so doing, 18 the Court explored the only meaningful alternative to dismissal at its disposal and found 19 that it was not effective. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Daniel L Whigham, No. CV-24-02579-PHX-DJH (JZB)
10 Petitioner, REPORT AND RECOMMENDATION
11 v.
12 Jason Gunther,
13 Respondent. 14 15 TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT 16 JUDGE: 17 Petitioner Daniel L. Whigham has filed a pro se Petition for Writ of Habeas Corpus 18 pursuant to 28 U.S.C. § 2241. (Doc. 1.) 19 I. Summary of Conclusion. 20 The Court previously sent two orders to the Petitioner with the correct address but 21 an incorrect federal register number for Petitioner. Those orders were returned as 22 undeliverable. On April 29, 2025, the Court discovered the error and sent a new Order to 23 Show Cause to Petitioner directing “that on or before May 16, 2025, Petitioner shall file 24 notice with the Court” that he received the Court’s prior order. He was also ordered to 25 advise if he received Respondent’s Response brief. Petitioner has not responded to that 26 order. Because Petitioner has failed to comply, he is not properly prosecuting his case. 27 Petitioner’s response to this Report and Recommendation is another opportunity for him 28 to properly prosecute this case or face dismissal of his Petition. 1 II. Background. 2 Petitioner raises two grounds for relief, claiming: 3 The Bureau of Prisons (BOP) is not allowing inmates who have a high or medium recidivism risk to “apply” their earned time credits (ETCs) toward 4 their sentence and is “bank[ing]” the ETCs until the inmate receives a minimum or low risk score. Petitioner claims this policy is “in direct 5 contradiction to Congress’[s] intent, and in violation of established law.” 6 BOP is denying Petitioner ETCs from the date he was sentenced until the time he arrived at his BOP-designated facility. Petitioner contends “Congress 7 intended for the ETCs to be available from the date a detained defendant’s sentence is imposed.” He asserts, however, that BOP’s policy is that an 8 inmate is eligible to earn ETCs only after the inmate “arrives at, or voluntarily surrenders at, the designated Bureau facility where the sentence 9 will be served,” not from when the inmate “is received in custody awaiting transportation to . . . the official detention facility at which the sentence is to 10 be served.” 11 (Doc. 5 at 1-2.) 12 III. Petitioner’s Habeas Petition. 13 On September 26, 2024, Petitioner filed the habeas petition. (Doc. 1.) 14 On January 15, 2025, Respondents filed a Response. (Doc. 12.) 15 A. Legal Standard. 16 Petitioner has the general duty to prosecute this case, to keep the Court apprised of 17 his current address, and to comply with the Court’s orders in a timely fashion. See LRCiv 18 83.3(d); Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 19 29 (9th Cir. 1978). “A party, not the district court, bears the burden of keeping the court 20 apprised of any changes in his mailing address.” Carey v. King, 856 F.2d 1439, 1441 (9th 21 Cir. 1988). In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme 22 Court recognized that a federal district court has the inherent power to dismiss a case sua 23 sponte for failure to prosecute, even though the language of Rule 41(b) of the Federal Rules 24 of Civil Procedure appears to require a motion from a party. Moreover, in appropriate 25 circumstances, the Court may dismiss a complaint for failure to prosecute even without 26 notice or a hearing. Id. at 633. 27 In determining whether Petitioner’s failure to prosecute warrants dismissal of the 28 case, the Court must weigh the following five factors: “(1) the public’s interest in 1 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 2 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 3 merits and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440 (quoting 4 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these factors 5 favor the imposition of sanctions in most cases, while the fourth cuts against a default or 6 dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” 7 Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). This test is applicable to the 8 dismissal of a habeas corpus petition for failure to prosecute. 9 B. Procedural Background. 10 On December 19, 2024, the Court ordered a response, set a reply deadline, and 11 mailed a copy of the order to Petitioner. (Doc. 5.) On December 30, 2024, the mailing to 12 Petitioner was returned as undelivered. (Doc. 8.) On January 3, 2025, the Court issued an 13 order that Petitioner “file a notice of change of address with the Court on or before January 14 17, 2025, or otherwise show cause why the action should not be dismissed for failure to 15 prosecute.” (Doc. 10.) On January 13, 2025, the order was returned as undeliverable stating 16 “attempted-not known.” (Doc. 11.) On January 15, 2025, the Response was filed. (Doc. 17 12.) Petitioner has not submitted a Reply. 18 On April 29, 2025, the Court consulted the Federal Bureau of Prisons inmate locator 19 and noted that Petitioner’s register number appearing on the site differs by one number 20 from the one on the Court’s docket. (Doc. 14.) The Court’s docket listed Petitioner’s federal 21 register number as 60587-10.” (Doc. 8.) Petitioner’s Federal Register Number online is 22 “60587-510.” (Doc. 14.)1 This number matches the number sent by Petitioner with the 23 Petition, which is 60587-510. (Doc. 1-1 at 1.) It appears the Court previously left out a “5” 24 in the number, even though Defendant’s name, his address, and most of the number were 25 correct. 26 So, on April 29, 2025, the Court sent a new Order to Show Cause to Petitioner 27 directing “that on or before May 16, 2025, Petitioner shall file notice with the Court 28 1 The website currently projects Petitioner’s release date as February 25, 2027. 1 indicating whether he has received the Screening Order, this Order, or the filed Response 2 (doc. 12), or show cause why this matter should not be dismissed for failure to prosecute.” 3 (Doc. 14.) This order has not been returned to the Court as undelivered. 4 C. Discussion. 5 In this case, the first two factors—public interest in expeditious resolution of 6 litigation and the need to manage the docket—weigh in favor of dismissal. Petitioner’s 7 noncompliance is causing unreasonable delay and halting the Court’s docket. Carey, 856 8 F.2d at 1441 (“It would be absurd to require the district court to hold a case in abeyance 9 indefinitely just because it is unable, through the plaintiff’s own fault, to contact the 10 plaintiff to determine if his reasons for not prosecuting his lawsuit are reasonable or not.”). 11 The third factor—prejudice to the opposing party—also weighs in favor of 12 dismissal, as a presumption of injury arises from the occurrence of unreasonable delay in 13 prosecuting an action. 14 The fourth factor—the availability of less drastic sanctions—ordinarily weighs 15 against dismissal. However, the Court attempted to avoid dismissal by ordering Petitioner 16 to show cause why this action should not be dismissed and expressly warned him that his 17 failure to comply with the Court’s orders could result in dismissal. (Doc. 14.) In so doing, 18 the Court explored the only meaningful alternative to dismissal at its disposal and found 19 that it was not effective. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 20 (“The district court need not exhaust every sanction short of dismissal before finally 21 dismissing a case, but must explore possible and meaningful alternatives.”). This factor 22 weighs in favor of dismissal. 23 The fifth factor—the general policy favoring resolution on the merits—ordinarily 24 weighs against dismissal. It is, however, “the responsibility of the moving party to move 25 [the case] towards [ ] disposition at a reasonable pace, and to refrain from dilatory and 26 evasive tactics.” Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). 27 Because Petitioner has failed to participate in his own legal action, it does not appear that 28 retention of this case would increase the likelihood of the matter being resolved on its 1 merits. This factor does not weigh in favor of, or against, dismissal. 2 Here, the Court directed Petitioner to confer with the Court by May 16, 2025, and 3 advise whether he received the Response filed by Respondents. (Doc. 14.) Petitioner failed 4 to respond to this Order. The Court will recommend the Petition be dismissed without 5 prejudice unless Petitioner responds to this Report and Recommendation. See Pagtalunan 6 v. Galaza, 291 F.3d 639, 642–43 (9th Cir. 2002) (district court did not abuse its discretion 7 in dismissing federal habeas petition for failure to respond to a court order and failure to 8 prosecute). 9 IV. Conclusion. 10 Based on the above analysis, the Court recommends the Petition be dismissed if 11 Petitioner fails to comply with this Court’s order to prosecute his case. Given the unusual 12 nature of the mailing history in the case, it is recommended the dismissal be without 13 prejudice. 14 IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas 15 Corpus pursuant to 28 U.S.C. § 2241 (doc. 1) be DENIED and DISMISSED WITHOUT 16 PREJUDICE. 17 This recommendation is not an order that is immediately appealable to the Ninth 18 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 19 Appellate Procedure, should not be filed until entry of the district court’s judgment. The 20 parties shall have 14 days from the date of service of a copy of this Report and 21 Recommendation within which to file specific written objections with the Court. See 28 22 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days 23 within which to file a response to the objections. 24 // 25 // 26 // 27 // 28 // 1 Failure to timely file objections to the Magistrate Judge’s Report and || Recommendation may result in the acceptance of the Report and Recommendation by the || district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 4}| 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the 5 || Magistrate Judge will be considered a waiver of a party’s right to appellate review of the 6|| findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report and Recommendation. See Fed. R. Civ. P. 72. 8 Dated this 11th day of June, 2025. 9 olson —— 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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