James Logan v. John Marshall, No. 2:2008cv05519 - Document 4 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS by Judge S. James Otero. (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 11 JAMES LOGAN, II, 12 Petitioner, 13 v. 14 JOHN MARSHALL, 15 Respondent. ) ) ) ) ) ) ) ) ) ) Case No. CV 08-5519-SJO (MLG) MEMORANDUM OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS 16 17 18 On August 22, 2008, Petitioner James David Logan, II, filed this 19 pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 20 2254. The petition was deficient in that it failed to identify the 21 conviction 22 information concerning the state procedural history of the case; 23 failed to assert facts supporting the claims for relief; and failed 24 to state a legal basis for relief. 25 Judge Marc L. Goldman dismissed the petition with leave to amend. 26 Petitioner was specifically informed that the failure to file an 27 amended petition correcting the deficiencies on or before September 28 25, 2008, would result in dismissal without further notice. and sentence being challenged; failed to provide On August 25, 2008, Magistrate 1 Petitioner failed to file an amended petition as directed and has not 2 requested an extension of time in which to do so. 3 The petition should be dismissed. Courts possess the 4 discretionary authority to dismiss an action based on a petitioner s 5 failure to diligently prosecute or failure to comply with a court 6 order. 7 F.2d 1258, 1260-61 (9th Cir. 1992); Anderson v. Air West, Inc., 542 8 F.2d 522, 524 (9th Cir. 1976); Link v. Wabash R.R., 370 U.S. 626, 629- 9 30 (1962). Fed.R.Civ.P. 41(b); Local Rule 12.1; Ferdik v. Bonzelet, 963 The Court is required to weigh the following factors in 10 determining whether to dismiss a case for lack of prosecution: (1) 11 the public s interest in expeditious resolution of litigation; (2) 12 the court s need to manage its docket; (3) the risk of prejudice to 13 the defendants; (4) the public policy favoring disposition of cases 14 on their merits; and (5) the availability of less drastic sanctions. 15 Ferdik, 963 F.2d at 1260, 1261; In re Eisen, 31 F.3d 1447, 1451 (9th 16 Cir. 1994); see also In re PPA Products Liability Litigation, 460 17 F.3d 1217, 1226 (9th Cir. 2006); Pagtalunan v. Galaza, 291 F.3d 639, 18 642 (9th Cir. 2002). 19 Here, the public s interest in the expeditious resolution of 20 litigation and the court s interest in managing its docket weighs in 21 favor of dismissal. As dismissal will be without prejudice, it would 22 not undermine the public policy favoring disposition of cases on the 23 merits. 24 Respondent or Petitioner. 25 In addition, there is no identifiable risk of prejudice to Finally, there appears to be no less drastic sanction which will 26 compel Petitioner to participate in this lawsuit. He has been given 27 the opportunity to amend his petition to state a viable habeas corpus 28 claim, but has not done so. Moreover, Petitioner was specifically 2 1 informed that failure to comply with the order requiring the filing 2 of a first amended petition would result in dismissal. 3 apparently no longer wishes to pursue this petition and there is no 4 other sanction which will compel his participation. 5 of these factors, dismissal of this petition without prejudice for 6 failure to prosecute is warranted. 7 Petitioner Balancing all IT IS SO ORDERED. 8 9 Dated: _____10/8/08_____ 10 11 12 /S/ 13 ______________________________ 14 S. James Otero 15 United States District Judge 16 17 18 19 Presented By: 20 21 22 23 24 ______________________________ 25 Marc L. Goldman 26 United States Magistrate Judge 27 28 3 S. James Otero

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