Unpublished Disposition, 875 F.2d 871 (9th Cir. 1987)

MEMORANDUM^** 

Thomas E. Spychala, a California prisoner, appeals pro se the district court's dismissal of his petition for writ of habeas corpus.

Spychala filed his first petition under 28 U.S.C. § 2254 (1982) on September 25, 1986. The magistrate dismissed the petition for failure to comply with Rule 2(c) of the Rules Governing Section 2254 Cases, which provides that the petition shall "set forth in summary form the facts supporting each of the grounds" for relief specified in the petition. Rule 2(c), 28 U.S.C. foll. Sec. 2254. The magistrate gave Spychala 30 days to file an amended petition, and advised him to "organize the pleading carefully, supporting each claim with a clear summary of the facts relating only to that claim." Spychala v. Borg, No. CV-S-86-1145-EJG (E.D. Cal. Dec. 19, 1986) at 2 (order). Spychala's amended petition failed to cure the deficiencies in his original one. The magistrate again dismissed the petition with leave to amend, advising Spychala to allege facts to support each legal claim and "to include such information as what claims were raised in state court, what documents he filed, and when and how they were resolved." Spychala v. Borg, No. CV-S-86-1145-EJG (E.D. Cal. Jan. 28, 1987) at 2 (order). As Spychala's second amended petition failed to comply with the court's instructions, the magistrate recommended that the action be dismissed without leave to amend. The district court adopted the magistrate's recommendations and dismissed the petition. Spychala v. Borg, No. CV-S-86-1145-EJG (E.D. Cal. May 7, 1987) (order).

In reviewing a dismissal for failure to comply with the court's instructions, Fed. R. Civ. P. 41(b), we must determine whether the district court abused its discretion by inadequately investigating the availability of less drastic alternatives to dismissal. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). "The exercise of [the court's] discretion to dismiss requires only that possible and meaningful alternatives be reasonably explored, bearing in mind the drastic foreclosure of rights that dismissal effects." Nevijel, 651 F.2d at 674. Here the district court explored such meaningful alternatives: It twice granted Spychala an opportunity to amend his deficient pleading, giving him explicit instructions regarding the information he needed to include.¹  The district court was not required to grant Spychala further leave to amend. "A pro se litigant must be given leave to amend his or her complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam). Spychala's inability to comply with the district court's instructions indicated the futility of giving yet other opportunities to amend.² 

We are slow in dismissing habeas corpus petitions brought by pro se litigants. See, e.g., Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Eldridge, 832 F.2d at 1137. In this case, however, we have little choice: Spychala's petition is so enigmatic, disjointed and incoherent that we can discern neither the nature of the claims he is making nor the underlying facts that might give rise to a cognizable claim. See Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir.) (affirming the dismissal of a pro se litigant's civil rights complaint where the second amended complaint was "so verbose, confused and redundant that its true substance, if any, is well disguised"), cert. denied, 382 U.S. 966 (1965). We conclude, therefore, that the district court did not abuse its discretion in dismissing Spychala's second amended petition for failure to comply with court orders.³ 

AFFIRMED.

FERGUSON, Circuit Judge, concurring:

I concur in the disposition of this case.

I comment briefly to explain that because the petitioner's factual allegations and legal claims are incomprehensible, he should almost certainly not be foreclosed under the doctrine of res judicata from pressing forward with a coherent and proper petition in the future. Since res judicata preclusion extends only to claims that arise out of the same "cause of action" asserted in the prior action, see Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir. 1980), logic dictates that one cannot determine whether there exists an identity of causes of action when the factual allegations and claims in the first action are indiscernible.