(HC)Palma v. Allison, No. 1:2010cv02120 - Document 10 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Petitioner's Failure to Comply With an Order of the Court and to Prosecute the Case 9 & 1 ; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 6/29/2011, referred to Judge Wanger. Objections to F&R due by 8/1/2011. (Marrujo, C)
Download PDF
<![CDATA[
(HC)Palma v. Allison Doc. 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LEONCIO PALMA, 11 Petitioner, 12 13 14 v. KATTY ALLISON, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—02120-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR PETITIONER’S FAILURE TO COMPLY WITH AN ORDER OF THE COURT AND TO PROSECUTE THE CASE (DOCS. 9, 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE 17 Petitioner is a state prisoner proceeding in forma pauperis 18 and pro se with a petition for writ of habeas corpus pursuant to 19 28 U.S.C. § 2254. The matter has been referred to the Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 21 304. Pending before the Court is the petition, which was filed 22 on November 15, 2010. 23 I. Failure to Prosecute and Follow an Order of the Court 24 In view of the decision in Swarthout v. Cooke, 562 U.S. –, 25 131 S.Ct. 859, 861-62 (2011), the Court reconsidered its earlier 26 order dismissing the petition with leave to amend, and on May 10, 27 2011, the Court again dismissed the petition with leave to file a 28 1 Dockets.Justia.com 1 first amended petition (FAP) within thirty days of service of the 2 order. 3 date. 4 filed a FAP or requested an extension of time within which to 5 file one. 6 The order was served on Petitioner by mail on the same Although thirty (30) days have passed, Petitioner has not Local Rule 110 provides that “...failure of counsel or of a 7 party to comply with these Rules or with any order of the Court 8 may be grounds for the imposition by the Court of any and all 9 sanctions... within the inherent power of the Court.” District 10 courts have the inherent power to control their dockets and “in 11 the exercise of that power, they may impose sanctions including, 12 where appropriate... dismissal of a case.” 13 Auth., 782 F.2d 829, 831 (9th Cir. 1986). 14 action, with prejudice, based on a party’s failure to prosecute 15 an action, failure to obey a court order, or failure to comply 16 with local rules. 17 (9th Cir. 1995) (dismissal for noncompliance with local rule); 18 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 19 (dismissal for failure to comply with an order requiring 20 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 21 (9th Cir. 1988) (dismissal for failure to comply with local rule 22 requiring pro se plaintiffs to keep court apprised of address); 23 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 24 (dismissal for failure to comply with court order); Henderson v. 25 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 26 of prosecution and failure to comply with local rules). Thompson v. Housing A court may dismiss an See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 27 In determining whether to dismiss an action for lack of 28 prosecution, failure to obey a court order, or failure to comply 2 1 with local rules, the court must consider several factors: (1) 2 the public’s interest in expeditious resolution of litigation; 3 (2) the court’s need to manage its docket; (3) the risk of 4 prejudice to the defendants; (4) the public policy favoring 5 disposition of cases on their merits; and (5) the availability of 6 less drastic alternatives. 7 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 8 1260-61; Ghazali, 46 F.3d at 53. Thompson, 782 F.2d at 831; Henderson, 9 In this case, the Court finds that the public’s interest in 10 expeditiously resolving this litigation and the Court’s interest 11 in managing the docket weigh in favor of dismissal, as the case 12 has been pending since November 2010. 13 prejudice to respondents, also weighs in favor of dismissal, 14 since a presumption of injury arises from the occurrence of 15 unreasonable delay in prosecuting an action. 16 West, 542 F.2d 522, 524 (9th Cir. 1976). 17 public policy favoring disposition of cases on their merits -- is 18 greatly outweighed by the factors in favor of dismissal discussed 19 herein. 20 to obey the court’s order will result in dismissal satisfies the 21 “consideration of alternatives” requirement. 22 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 23 1424. 24 amendment expressly informed Petitioner that a failure to file a 25 petition in compliance with the order within the allotted time 26 would result in a recommendation that the petition be dismissed 27 and the action be terminated. 28 received adequate warning that dismissal would result from his The third factor, risk of Anderson v. Air The fourth factor -- Finally, a court’s warning to a party that his failure Ferdik v. Bonzelet, The Court’s order directing Petitioner to file an (Doc. 9, 7.) 3 Thus, Petitioner 1 2 noncompliance with the Court’s order. Accordingly, it will be recommended that the petition be 3 dismissed for Petitioner’s failure to comply with the order of 4 the Court. 5 II. 6 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 7 appealability, an appeal may not be taken to the Court of Appeals 8 from the final order in a habeas proceeding in which the 9 detention complained of arises out of process issued by a state 10 court. 11 U.S. 322, 336 (2003). 12 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue only if the 13 applicant makes a substantial showing of the denial of a 14 constitutional right. 15 petitioner must show that reasonable jurists could debate whether 16 the petition should have been resolved in a different manner or 17 that the issues presented were adequate to deserve encouragement 18 to proceed further. 19 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 20 certificate should issue if the Petitioner shows that jurists of 21 reason would find it debatable whether the petition states a 22 valid claim of the denial of a constitutional right and that 23 jurists of reason would find it debatable whether the district 24 court was correct in any procedural ruling. 25 529 U.S. 473, 483-84 (2000). 26 § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 27 the claims in the habeas petition, generally assesses their 28 merits, and determines whether the resolution was debatable among 4 1 jurists of reason or wrong. 2 applicant to show more than an absence of frivolity or the 3 existence of mere good faith; however, it is not necessary for an 4 applicant to show that the appeal will succeed. 5 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 6 A district court must issue or deny a certificate of 7 appealability when it enters a final order adverse to the 8 applicant. 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 10 debate whether the petition should have been resolved in a 11 different manner. 12 of the denial of a constitutional right. 13 14 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 15 III. 16 Accordingly, it is RECOMMENDED that: 17 1) Recommendations The petition be DISMISSED for pursuant to Local Rule 110 18 for Petitioner’s failure to comply with the Court’s order and to 19 file a first amended petition; and 20 21 2) The Court DECLINE to issue a certificate of appealability; and 22 3) 23 These findings and recommendations are submitted to the 24 United States District Court Judge assigned to the case, pursuant 25 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 26 the Local Rules of Practice for the United States District Court, 27 Eastern District of California. 28 being served with a copy, any party may file written objections The Clerk be DIRECTED to close the action. Within thirty (30) days after 5 1 with the Court and serve a copy on all parties. 2 should be captioned “Objections to Magistrate Judge’s Findings 3 and Recommendations.” 4 and filed within fourteen (14) days (plus three (3) days if 5 served by mail) after service of the objections. 6 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 7 636 (b)(1)(C). 8 objections within the specified time may waive the right to 9 appeal the District Court’s order. 10 Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 IT IS SO ORDERED. 13 Dated: ie14hj June 29, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
